> 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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1.0 


1.1 


122 


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6" 


llift 

1.6 


Hiotographic 
.Sciences 
Corporation 


23  WIST  MAIN  STRKT 

WIBSTIR,N.Y.  USM 

(716)«72-4S03 


6 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Instituta  for  Historical  IMicroraproducuons  /  Institut  Canadian  de  microraproductions  historiquas 


Technical  and  Bibliographic  Notes/Notes  tachniquas  at  bibliographiquaa 


Th 
to 


Tha  Instituta  haa  attamptad  to  obtain  tha  baat 
>  ^jinal  copy  availabia  for  filming.  Faaturaa  of  thia 
copy  which  may  ba  bibliographically  uniqua, 
which  may  altar  any  of  tha  imagaa  in  tha 
raproduction,  or  which  may  aignificantly  changa 
tha  uaual  mathod  of  filming,  ara  chackad  balow. 


□    Colourad  covara/ 
Couvartura  da  coulaur 


I     I    Covars  damagad/ 


Couvartura  andommagte 

Covara  raatorad  and/or  lamlnatad/ 
Couvartura  raataurte  at/ou  pallicufia 

Covar  titia  mlaaing/ 

La  titra  da  couvartura  manqua 

Colourad  mapa/ 

Cartaa  gtographiquaa  an  coulaur 

Colourad  Inic  (i.a.  othar  than  b^iia  or  black)/ 
Encra  da  coulaur  (i.a.  autra  qua  blaua  ou  noira) 


□   Colourad  plataa  and/or  illuatrationa/ 
Planchaa  at/ou  illuatrationa  an  coulaur 

□    Bound  with  othar  material/ 
RaliA  avac  d'autraa  documanta 


D 


D 


D 


Tight  binding  may  cauaa  ahadowa  or  diatortion 
along  interior  margin/ 

La  re  liure  aerrte  peut  eauaar  da  I'ombre  ou  de  la 
diatortion  la  long  de  la  marge  IntArleure 

Blank  laavaa  added  during  reatoration  may 
appeer  within  the  text.  Whenever  poaaibla,  theae 
have  been  omitted  from  filming/ 
II  ae  peut  que  certainee  pagea  bianchea  ajoutAea 
lore  d'une  reatauration  apparaiaaent  dana  la  texte. 
mala,  loraqua  cela  Atait  poaaibla,  cae  pagea  n'ont 
paa  At*  fllmAea. 

Additional  commenta:/ 
Commantairea  aupplimantairaa: 


L'Inatltut  a  microf  llmA  la  mailleur  exempiaira 
qu'll  lui  a  AtA  poaaibla  da  ae  procurer.  Lea  dAtaila 
da  cat  exempiaira  qui  aont  paut-Atre  uniquea  du 
point  de  vue  bibliographiqua,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dana  la  mAthoda  normaia  da  filmaga 
aont  Indlqute  ci-daaaoua. 


D 
D 
D 

n 

0 
n 

n 


Coloured  pagea/ 
Pagea  da  couleur 

Pagea  damaged/ 
Pagea  andommagAea 

Pagea  reatored  and/or  laminated/ 
Pagea  reataurAea  at/ou  pelliculAea 

Pagea  diacolourad,  atained  or  foxed/ 
Pagea  dteolortea,  tachattea  ou  piqutea 

Pagea  detached/ 
Pagaa  dAtachAea 

8h<"'^through/ 
Treri&parance 

Ci:Aiity  of  print  variaa/ 
QuaSitA  intfgale  de  I'lmpreaaion 

Includaa  aupplamentary  material/ 
Comprend  du  matAriai  auppMmentaira 

Only  edition  available/ 
Seule  Mition  diaponibia 

Pagaa  wholly  or  partially  obacurad  by  errata 
alipa,  tiaauaa,  etc.,  have  been  refilmed  to 
enaura  tha  baat  poaaibla  image/ 
Lea  pagaa  totalement  ou  partiellement 
obacurclaa  par  un  feulllet  d'errata,  une  pelure, 
etc.,  ont  M  f llmAea  A  nouveau  de  fa^on  k 
obtanir  la  meilleure  image  poaaibla. 


Th 
po 
of 
fill 


Or 
be 
th< 
sio 
oti 
(in 
sic 
or 


Th 
shi 
TH 
wt 

Ml 
dif 
am 
bai 
rig 
req 
mc 


Thia  item  la  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  eat  filmi  au  taux  de  rMuction  indlquA  ci-deaaoua. 

10X  14X  18X  22X 


28X 


»X 


y 


12X 


16X 


20X 


24X 


28X 


tails 

du 
Ddifier 

une 
mage 


The  copy  filmed  here  has  been  reproduced  thanks 
to  the  generosity  of: 

Univtrtity  of  Windsor 
Law  Library 

The  images  appearing  here  are  the  best  quality 
possible  considering  the  condition  and  legibility 
of  the  original  copy  and  in  Iceeping  with  the 
filming  contract  specifications. 


L'exemplaire  filmA  fut  reproduit  grice  h  la 
gAn^rosM  de: 

University  of  Windsor 
Law  Library 

Les  images  sulvantes  ont  4t4  reproduites  avec  le 
,ilus  grand  soin,  compte  tenu  de  is  v^ondition  et 
de  la  nettetA  de  rexemplaire  fiimt,  et  en 
c^r'.i  rmiti  avec  les  conditions  du  contrat  de 
fi>iaje. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion, or  the  back  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
(irst  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  — ►  (meaning  "CON- 
TINUED"), or  the  symbol  V  (meaning  "END"), 
whichever  applies. 


Les  exemplalres  origlnaux  dont  la  couverture  en 
papier  est  ImprimAe  sont  filmfo  en  commenfant 
par  le  premier  plat  et  en  terminant  soit  par  ia 
dernlAre  page  qui  comporte  une  emprelnte 
d'Impression  ou  d'illustration,  &oit  par  le  seccnd 
plat,  salon  le  cas.  Tous  les  autres  exemplaires 
origlnaux  sont  filmte  en  commen^ant  par  la 
premiAre  page  qui  comporte  une  emprelnte 
d'Impression  ou  d'illustration  et  en  terminant  par 
la  dernlAre  page  qui  comporte  une  telle 
emprelnte. 

Un  des  symboles  suivants  apparaltra  sur  la 
dernlAre  image  de  cheque  microfiche,  selon  le 
cas:  le  symbols  -^  •iqnifie  "A  SUIVRE",  le 
symbols  ▼  signifle  "FIN". 


IVIaps,  plates,  charts,  etc..  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  M 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  Illustrate  the 
method: 


Les  cartes,  planches,  tableaux,  etc.,  peuvent  Atre 
fllmte  A  des  taux  de  rMuctlon  diff6rents. 
Lorsque  le  document  est  trop  grand  pour  Atre 
reproduit  en  un  seul  clichA,  11  est  film*  A  partir 
de  I'angie  supArieur  gauche,  de  gauche  A  droite, 
et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  nAcessaire.  Les  diagrammes  suivants 
illustrer^t  la  mAthode. 


rata 

0 


lelure. 


32X 


1  2  3 


1 

2 

3 

4 

5 

6 

il 


^rxi2t/v^-  ^v?a--^^pAl^ 


ll 


EARLY 


BENCH    AND    BAR 


OF 


ILLINOIS. 


BY 


JOHN  DEAN  CATON, 

Ex-Chief  Justice  of  Illinois;  author  of  "  The  Antelope  and  Deer 

of    America;"    "A   Summer   in   Norway;" 

"  Miscellanies,"  etc. 


OHICAOO: 
PRINTED  BY  THE   CHICAQO  LEGAL  NEWS  COMPANY,  87  CLARK   STREET 

issa 


i     i 


PREFACE. 


Some  years  ago  when  in  social  conversation  with  two 
gentlemen  of  the  liar,  I  was  relating  some  professional  inci- 
dents whicli  had  occurred  many  years  before,  when  one  of 
them  suggested  that  it  would  be  interesting  to  the  jn-ofes- 
sion  of  the  present  day  if  I  would  note  down  events  which 
had  occurred  in  the  early  times  and  lay  them  before  the 
])ublic;  I  ])romised  to  do  so,  and  the  result  was  a  series  of 
articles  i)ublished  in  the  Chicago  Legal  News.     Upon  their 
publication  I  received  many  letters  from  gentlemen  of  the 
Jiar  in  various  parts  of  the  State,  exi)ressing  the  hope  that 
the  articles  migh:  be  republished  in  book  form.     1  final! v 
revised  these  articles  and  prepared  them  for  the  ]>ress  witli 
several  new  papers  which  have  not  been  i>reviouslv  ])nb- 
hshed,  and  placed  them  in  the  hands  of  the  printer,  thinkin.^ 
that  many  incidents  and  some  peculiarities  of  former  timt^ 
might  be  thus  perpetuated,  which  may  in  still  later  times  be 
considered  worth  remembering.     I  do  this  tlu  more  readily 
as  I  am  probably  the  only  man  now  living  who  c'an  speak 
from  i.ersonal  observations  and  recollections  of  events  of 
iifty  years  and  more  ago. 

In  the  Appendix  I  have  given  an  address  delivered  before 
the  State  Bar  Association  on  the  24th  of  January  last  and 
another  given  before  the  Chicago  Bar  Association  Februarv 
11,  1893,  in  which  will  be  found  some  statements  germane 
to  the  subject,  not  previously  o-iven. 

1000  Calumet  Ave.,  Chicago,  April  26,  1893. 


INDEX. 


I.  My  First  Client.  p^^^ 

Hoosier  Peculiarities— Prosecuting  a  Thiof  -First    Criniinal 
Case  in  Cook  Ckjunty j 

II.  My  Second  Client. 

The  Firet  Civil  Case  tried  in  Cook  County 13 

III.  My  First  Marriage  Ceremony. 

A  French  Couple <« 

IV.  My  Second  Marriage  Ceremony. 

Life  in  the  Early  Days ^9 

V.  Another  Connubial  event. 

Life  in  the  Country— A  Wedding  Dinner 23 

VI.  Another  Connubial  Event. 

Reflections— Reminiscences 30 

VII.  Circuit  Scenes. 

I.  The  first  Term  of  Circuit  Court  in  Cook  County— First  Trial 

for  Murder  in  Cook  County— Defends  a  Thief  in  Will 
County— First  Jury  Trial  in    Kane  County     ....     38 

II.  Practice  in  Early  Days-Following    the   Ciicuit— Riner- 

ancy— Incidents 50 

III.  Trial  of  a  Murderer     ...  U 

IV.  Circuit  Court  held  by  Three  Justices  of  the  Peace— The 

Lead-Miners— Stories  of  Bench  and  Bar 53 

V.  Practice .  in  Another  County— Defense  of  One  Accused  of 

Theft gg 

VI.  Chancery    Suits— Suits    against    Colonel    Strawn— Early 

Days  on  the  Bench i^g 

VII.  Reformation  of   the  Supreme    Court— Election    of    New 

Judges— Elected  as  Judge  of  the  Supreme  Court     .      .    90 

VIII.  Lynch  Law— Punishment  of  Oifenders 95 

IX.  Incidents  of    Trials .99 

X.  Stories  and  Incidents  of  Trials 106 


^*  INbEX. 

XI.  Lifo   on  the  Cinuit  .                                                         ''"^''f.; 

XII.  Trial  of  Mr.   L«jvojoy  ....'.".■'.■■■   jo, 

Xlll.  Anti-slavtry  Tiums  in   Illinois  i^- 

XIV.  Trial  of  Philiipa   for    Murdi-r  rn 

XV.  Civil  Trials     ...  ,'' 

I4i) 

VIII.    The  CoNiEKEXCE  Room. 

I.  Tl.c-  Difli(ulti,«of  Early  Travd-Luck  for  Place-Trip  to 
Mt.  Vernon ... 

II.  Service  on  tlu-  Supri-nu'  Iif'nch-Sia-.u.s  in   tho  ('onfcn.ncro 

lioom jjjo 

III.  The  Judges  of  the  Supreme  Court j-J 

IV.  Salaries  of  the  JtulKes-Histoj-y  of  tne  ( ;ourt  from  the   I  'k.- 

KinnnifT-Hardships  of  Travel  in  Attending  Court  181 

V.  Aiu-cdotes  of  Lincoln  and   Others  -Stories  of  Celebrated 

T"«l« • 184 

VI.  Appointment  of  Pinckney  H.  Walker  as  Judge-Sketch  of 

'"•"^•^^ IDl 

IX.  ReporTEUS  of  the  StTPUEME  CoillT. 

Salaries— Lahoi-s-Piu-donal    Mention jq^ 

X.  The  Frailty  of  Himan  Memory. 

Personal  Incident nno 

Appendix  : 

I.  Address  Iwforo  the  State  Bar  Association,  January  24th 

1*^^'^ '  'op, 

II.  Address  before  the  Chicago  Bar  Association,  at  a  reception 

given  hnn  by  the  Association,  Februarv  lltli,  1893  03,) 

III.  The  Exodus  of  the  Mormons  to  Salt  Lake.  *     '  om 


PORTRAITS. 


John  Dean  Caton    . 

SiDXEY  Breese 64 

Samuel  H.  Treat    ....    90 

David  Davis 93 

Lyman  Trumbull    ....    94 

Burton  C.  Cook 101 

Benjamin  F.  Fridley  .  .  .  lOG 
Gustavus  Koerner  .  .  .  .116 
Anthony  Thornton  .  .  .  136 
T.  Lyle  Dickey    .    .    ,    .147 


.  Frontispiece. 
Charles  B.  Lawrence  .  .  .  l.'JS 
Samuel  D.  Lf>cK\vooD  .  .  .170 
ThomasC.  Browne  .  .  .  .173 
OxiAsC.  SKiXNF.n  ....  184 
Pinkney  H.  Walker  .  .  .191 
Corydon  Beckwith  ....  194 
Jonathan  Young  Scammon    .  20.") 

Ebenezer  Peck 206 

XouMAN  L.  Free.\l\n     .     .     .207 


EAKLY  BENCH  AND  EAR 
OP  ILLINOIS. 


I. 


MY  FIRST  CLIENT. 

I  arrived  in  Chicago  on  tlic  10th  of  Jnno,  1^30,  witli  four- 
teen (lolhu's  an<l  some  cents  in  my  ])ocket,  and  st<)[)]»ed  tiie 
first  nigiit  at  the  log  tavern  at  Wolf  Point,  ke])t  by  ^Y.  W. 
Wattles.  The  next  day  I  took  lodging'  with  JJextei-draves, 
who  kept  hoarders  at  fivedolhu's  per  week  inalog  house  just 
iKn-tli  of  Lidce  and  east  of  Dearborn  streets.  There  I  found 
(iiles  Sj)ring,  a  young  lawyer  Avho  had  arrived  a,  few  <lavs 
l)efore  u\q,  but  lie  had  seen  no  sign  of  professional  business. 
I  went  over  the  river  to  the  north  side  to  the  oHice  of  Col. 
R.  I,  ILunilton,  which  was  in  a  log  building,  a  part  of  which 
was  occui)ied  by  his  family.  lie  was  the  clerk  of  the  Cir- 
cuit Coui't,  and  of  the  County  Commissioners'  Court  and 
Judge  of  Probate.  :N^either  Spring  nor  myself  co.dd  11  nd  a, 
room  foranomce,nor  was  it  possible  to  do  so  till  the  Decem- 
ber following,  when  Dr.  John  T.  Temple  erecte<'  a  small 
l)alloon  building,  for  his  OAvn  office,  on  South  Waier  street 
M-est  of  Fraidclin.  In  this  there  were  two  lower  rooms,  the 
rear  one  of  which  he  rented  to  me  for  an  office.  As  Si)ring 
could  find  no  place  where  he  could  take  a  client  in  —out  of  the 
cold,  I  mean— I  offered  him  desk  room  in  \).y  office  which 
he  gladly  accepted,  it  being  agreed  that  \  nen  o!ie  had  a 
client  tlie  other  should  withdraw.     This  was  the  first  law 


EAHIA'  BKN'ril  AND  BAR  OF  liXINOIS. 


oHleo  ovoi'opciUMl  it  ("Iii('iin<),     Fop  ji  liln'iii'v  Im'  had  IVtcis 
(lui'l's  Alu'id^ini'nt  and  I  had  Chitty's  IMcadiiig's. 

J^ct  us  iu»\v  <••«)  hack  tothf  h('i;iniiiti^'. 

Col.  Hamilton  vrry  kindly  od'crcd  us  the  use  of  his  odicc- 
when  w«>  shoidd  have  writinu'  to(l(»  or  wished  to  study  the 
Statutes  of  Is;)."),  a  copy  of  which  lui  had.  1  spent  seV(M'al 
(lays  dili;^'ently  studyin;;' that  •^•ood  old  hook.  What  sti'uck 
uic  as  the  worst  part  of  it  was  that  it  ^ave  no  fees  to  the  at- 
torney of  the  successful  pitrty  against  the  party  in  the 
wron!4'. 

Col.  Hamilton  was  a  very  «i;ood  lawyer  and  sf)AvasTiussell 
E.  Ileacock,  who  had  practiced  law  for  many  years  in  the 
southern  part  of  the  Stat«',  but  there  beino-  no  business  here 
for  a  lawyer,  he  had  built  a  log  carpenter's  shop  at  the  cor- 
ner of  State  and  South  Water  street,  where  ho  Avorked  at 
the  trade  which  he  luul  learned  before  he  studied  hiw.  lie 
also  held  the  olKce  of  justice  of  the  peace.  The  rest  of  the 
judicial  force  of  Chicago  consisted  of  Isaac  Harmon,  Avho 
lived  in  Miller's  tannery,  on  the  Xorth  Side,  and  had  liis 
ottice  in  one  room,  and  Archibald  Clybourn,  Avho  lived  two 
miles  up  the  North  IJranch.  Stephen  Forbes  Avas  sheriff 
and  lived  at  Lauton's  crossing  opj)osite  to  Avlioi'o  lliverside 
now  is. 

^Vell,  here  I  had  boon  tAVO  AA'eeks  boarding  Avith  Dexter 
Graves,  at  five  dollars  per  week,  and  no  sign  of  any  sort  of 
hiw  business. 

IMy  board  bill  must  noAv  be  paid,  and  that,  Avith  a  fcAV 
other  stingy  ex])enditures,  Avould  bankru|)t  my  treasury.  I 
began  to  think  that  after  all  Chicago  Avas  a  better  place  to 
starve  in  than  to  make  a  fortune.  At  any  rate,  it  Avas  too 
honest  and  too  peaceable  to  need  a  laAvycr's  services,  or,  in 
fact,  for  any  great  cit\'. 

After  I  had  eaten  a  supper  that  I  did  not  knoAV  I  should 
ever  be  al)le  to  i)ay  for,  in  a  rather  dejecte<l  mood  I  Avandered 
out  to  a  lloosier  encamjnnent  in  the  border  of  the  brush 
about  Avhere  ^tadison  street  is,  and  thence  southerly,  and 
joined  the  men  avIio  said  "  AvliicU  "  instead  "of  ichat.    These 


MY  FlUWT  CLIKNT. 


•  > 


worn  nion  wlio  oiuiio  from  tlii>  Wiiliiisli  on  tlic  ]Iuli)tiinl 
tniil  and  hnni^liL  their  tntrk  up  and  tnulcd  for  .salt.  Tliry 
caiiic  with  «)X  teams  of  live  or  si\  pairs  of  o.xeii  to  a  covei'ed 
wa^on,  ill  whicli  they  lived  hoih  on  the  road  and  in  town. 
Their  <»xen  were  <>-rjizin<^'  near  where  they  were  (MU'ain|>ed, 
east  of  whero  tlie  Uoard  of  Trade  now  stand.s.  The;  camp 
consisted  of  a  do/en  oi'  more  y^/v/Z/vV  tfcjuximrn,  their  camp 
lires  sparklino-  in  the  dai'Uness. 

The  Jloosiers  were  seated  on  their  ox  yokes  around  tluMr 
lires.  cookin;^' tlieir  suppers  of  fried  ap|)les  and  bacon  and 
coUl  corn  hi-ead. 

As  I  caine  from  the  sombre  back<j;'roun(l  and  approaclied 
the  nearest  camp  lire,  an  old  frontier  patriarch  who  seeme<l 
entitled  by  seniority  to  ])reside,  extended  l;"-.  hand  to  me 
M'itli  a  hearty  g-ood-day.  and  without  risiii<^,  Ji itched  al(»n«ji' 
on  the  ox  yoke  and  olfered  me  a,  seat  beside  him. 

"  Wliicli'"'  is  the  matter  youni;-  man, "  said  li(>,  "y  u  are 
the  iirst  man  I  have  seen  near  this  ntck  of  timbi'i'  who  was 
not  ^oiiio-  like  cliain  lightning  though  1  haveiri  liearii  tell 
that  they  struck  yet.  " 

"That^?  what's  the  matter"  said  1,  "nobody  strikes,  but 
everybody  runs,  AVliat  sort  of  a  chance  can  an  honest  law- 
yer have  in  such  a  place  \  Ifere  I've  been  two  weeks  and 
not  the  ghost  (jf  a  fee.  They  talk  alxmt  a  big  place  to  be 
here  and  nary  a  thief  or  ccmnterfeiter  about.  AVho  ever  heard 
of  any  smart  town  without  one  or  both  of  these  gentry  V 
"  Hold  your  horses,  young  man,"  said  my  new  friend, 
"  where  they  sell  salt  for  a  dollar  a  V)ushel,  and  give  a  bit  a 
bushel  for  onions,  will  not  do  long  without  lawyers,  unless 
they  are   taken  to  the   other  side   of   kingdom-como  be- 

*Soon  after  I  came  to  Chicago  an  article  aii[)pare(l  in  a  Boston 
paper,  in  wiiich  some  eastern  travek-r  ^ave  a  clescrii)tion  of  wliat  he 
Iiail  noticed  in  ami  about  Chicago,  ami  lie  S3eme;l  to  have  bi'cn  par- 
ticularly struck  with  some  characteristics  of  tliese  Hoosiers  from  the 
Wabash,  wlio  Iv.-ouglit  their  truck  by  these  long  ox  teams,  and  in 
speaking  of  this  particular  use  of  the  word  which,  lie  fell  into  doggerel 
andtiaidof  the  Hoosior,  "When  the  last  trump  shall  sound,  were  I  as 
Crwsus  rich,  I'd  give  it  all  to  see  him  jump,  ami  Icudly  answer  •  which  •- ' " 


EARLY  BENCH  AND  BAli  OF  ILLINOIS. 


I      I 


loro  their  time  is  up.  Xever  fear,  the  hiwvei's  and  the  devil 
liave  a  sinai-t  ehancc  aliead  and  not  Ion*"-  neither,  unless  tliey 
stiek  out  their  heel  corks  and  settle  back  into  the  breach- 
in,iL«'.  These  Yankees  that  are  c<  inini>-  in  hero  in  biyoor  fhjcks 
than  the  locnsts  that  eat  up  the  "i'yV/.sAv^s,  hip  and  tlngh,' 
will  be  stealing  corner  lots  and  running  otF  Avitli  'em  in  less 
nor  a  month  and  then  thev  Avill  be  after  you  to  chase 'ei.i. 
Chase'enil  AVhy  tiieni  fellows  will  slip  throuu'h  a  knot 
ImjIc  where  you  could  not  s([iieeze  a  flaxseed.  IJut  they  will 
pay  you  all  the  same.     There's  your  lio^^'  and  hominy  young 


man. 


"  Yes,"  I  replied,  "  what  am  I  to  do  in  the  mean  time  ( 
T  must  eat  every  day  and  if  I  can  find  nothing  to  do  I  shall 
l>e  as  thin  as  a  ghost  in  less  than  two  weeks.  I  have  been  a 
school  master  in  my  day  and  was  reckoned  a  good  one  at 
tliat.  Do  they  have  schools  down  on  the  Wabash  where 
you  Vivei "' 

'*  Well,"  said  he,  "  we  don't  have  schools  down  there  yet 
to  hurt,  but  they  are  beginning  to  talk  about  one,  I've  hearn 
tell,  and  maybe  that  wt)uid  do  lor  a  makeshift.  Come  'round 
to-morrow  nioht  and  we'll  talk  it  over  again.  You  shan't 
go  hungry  while  thei-'s  a  shoat  in  the  bottoms  or  me'n  those 
boys  have  a  hunk  of  bacon  left.'' 

"  Jlello,  Uncle  Jake  I  "  shouted  a  voice  from  a  neighboring 
camj)  lire  in  ringing  tones.  "ir/</t7i.^"  inquired  my  new 
friend. 

"What  ore  you  wagging  your  chin  about  over  there?'' 
incpiired  the  same  voice.  "  Oh,''  said  Uncle  Jake,  *'  here's  a 
young  feller  on  the  anxious  seat  relatin'  h's  experience,  and 
it's  a  rather  hard  one.  He  arn't  a  yankee  nuther,  but  from 
old  Kentuck  or  mav  bo  Tennessee,  I  reckon.  lie's  a  voun;>' 
lawyer  and  he  says  there  ha'nt  been  a  fight  or  a  horsethief 
in  this  burgh  yet,  and  he  don't  think  this'll  be  much  of  a 
town,  no  how." 

"  Xever  3'ou  mind,  tell  him,"'  was  the  encouraging  reply. 
"  they'll  see  cnougli  of  them  'afore  long,  to  make  a  smart 
chance  of  a  town,  and  make  the  lawyers  too,  I  reckon; 


MY  FIRST  CLIENT. 


5 


iiior'n  half  tlio  pp()])lo  we  soo  will  turn  tlint  way  'aforotlicy 
liavo  a  church  in  th(»  place.  Then  there'll  be  lieai)sol'  woric 
lor  lawyers  good  and  had." 

On  hearing'  these  conii'ortino:  o]iinions,  I  arose  and  shook 
liands  with  Tncle  Jake  and  the  hoys,  and  took  my  leave 
without  ex[)lainin^»'  my  nativity,  for  they  deemed  all  from 
the  east  of  Ohio  yankees.  whom  they  considered  sharpei- 
hut  no  more  honest  than  horsethieves  or  counterfeiters.  Jn 
my  conversation  I  hijd  avoided  the  Eastern  twano'  and  had 
adopt(Hl  the  Southern  accent  and  pronunciation,  which  had 
misled  Uncle  Jake  in  his  conclusions  as  to  Avhence  I  came. 

I  couhl  not  fulfill  mv  eni>ao-oment  to  call  the  next  iii<>ht 
for  I  was  professionally  en<:aoed.  As  I  took  my  way  across 
the  ])rairie  toward  the  loo-cal)in  Avhich  constituted  my  inn, 
and  crawled  into  my  bed  in  the  attic,  I  felt  encoura^icd  l)v 
the  kind  and  hopeful  suggestions  of  my  new  found  Jiixjsier 
fi'iends. 

The  next  morning  after  breakfast,  having  no  office  to  go 
to,  I  went  over  to  South  AVater  street,  to  see  what  new 
faces  Avould  show  themselves.  Presently  a  ratlun'  short, 
stout  young  man  stepjied  uj)  to  me  and  in(|uired  if  I  was  a 
lawyer.  This  incjuiiy  went  through  me  like  an  electric 
shock,  but  I  composed  myself  instantly,  and  answered  him 
that  I  was,  and  inquired  if  I  could  be  of  any  service  to  him. 
He  replied  that  some  one  had  stolen  from  him  $40  of  lUA- 
lows  Falls  money,  and  he  wanted  my  assistance  to  catch 
the  thief  and  recover  the  ])ropertv. 

As  I  had  no  ofHce  to  which  1  could  take  my  client  for  a 
l^rivate  considlation,  I  led  the  way  across  the  street  to  tlu^ 
baidv  of  the  river,  when^  we  seated  ourselves.  Then  he  in- 
formed me  that  he  had  slept  the  night  before  at  Wattles' 
tavern  in  a  room  Avith  anotluM'  young  man,  a  stranger,  and 
when  he  awoke  in  the  morning,  his  room  mate  and  his 
money  were  gone.  After  minute  in(iuiry  I  was  satisfied 
that  his  room  mate  was  the  thief. 
As  Mr.  Justice  Ileacuek  was  the  only  magistrate  ou  the 


6 


EAIJLY  BENXH  AND  BAR  OF  ILLINOIS. 


r:i 


I!       I 


south  side  (»f  tlio  river,  wo  niiulo  our  way  to  his  ollicc,  or 
carjM'Utoi"  shop,  as  the  case  might  he. 

I  «i,-ot  the  statute,  and  usiii<^-  liis  carpenter's  bench  for  a 
table,  wrote  out  aconiphiint  in  most  ehiboi'ate  form,  ])uttinjj'' 
in  not  only  all  that  was  necessary,  but  a  good  deal  that  was 
not  necessai'v,  and  read  it  over  veiy  carefully  to  my  client 
and  the  justice,  who  then  swore  him  to  the  com])laint  and 
mixle  out  a  warrant  for  the  arrest.  This  wo  took  to  tlu^  lo"- 
cabinet  shop  of  James  AV^.  Reed,  situate  on  South  Water 
street  between  Franklin  and  Wells.  Heed  was  the  constable 
of  the  town,  a  stout,  vigorous  man  of  about  thirty  years 
of  ag(\  an<l  the  oidy  cabinet  maker  in  the  place. 

We  all  started  out  in  a  search  of  our  man  and  for  a  lony 
time  could  get  no  trace  of  him  and  feared  lie  had  taken  to 
the  woods  or  to  the  ]>raii'ies.  In  an  hour  everybody  had 
hear<l  of  the  theft  with  the  usual  exaggerations,  and  nearly 
everybody  became  a  quasi  detective.  Toward  night,  Heed 
got  a  pointer  and  soon  r m  his  man  to  earth  and  marched 
him  <h)wn  to  the  car])enter's  shop — the  justice's  oltice — fol- 
lowe<l  by  a  crowd  which  fairly  tilled  it. 

Justice  Ileacock  took  his  seat  on  a  saw  horse  beside  the 
carpenter's  bench,  on  which  was  lighted  a  single  tallow  di]), 
supported  by  four  nails  driven  into  a  block  of  wood,  and 
<»l)ened  his  docket  and  called  the  case  in  a  very  formal  man- 
ner. I  answered  for  the  peo])le.  and  the  prisoner  for  him- 
self, and  pleaded  not  guilty  in  a  very  emphatic  tone.  I  then 
jH'oposed  that  the  constaI)le  search  the  ]n'isoner  for  the 
stolen  money,  which  was  ordered  In*  the  court,  and  <luly  en- 
tei'cd  <n\  the  (htcket.  Of  course  I  assisted,  and  the  court 
soleinnly  looked  on,  while  the  crowd  pressed  around  curi- 
ously, if  not  anxi<msly.  All  the  pockets  were  turned  inside 
out,  but  no  I>ellows  Falls  money  Avas  found.  The  prisoner 
was  then  strii)]ied  to  his  shirt  and  long  stockings,  but 
nothing  that  we  were  after  was  found.  The  feeling  of  the 
crowd  was  evidently  swaying  in  favor  of  the  young  man, 
and  the  court  showed  decided  signs  of  weakening,  and  in  an 
emphatic  tone  ordered   him  to  put  on    his  clothes.     He 


MY  FIRST  CLIENT. 


soizod  ]iis  pant:^  and  as  ho  raisod  his  right  foot  to  introduce 
it  into  the  outer  <j^annent.  the  calf  of  his  rio-ht  le«r  was 
brought  into  distinct  view  in  the  dim  light,  when  my  eye 
caught  a  little  bunch  on  the  swell  of  the  leg.  I  (luickly 
seized  this  between  my  thuml)  and  forefinger  and  fasteneil 
to  it,  and  probably  some  of  the  skin  as  well,  and  told  the 
constable  to  carefully  roll  down  the  stocking  and  see  what 
Avas  there.  Jle  did  so,  and  took  out  a  little  wad  of  bank 
l>ills,  Avhich  he  handed  to  the  court  with  an  exi)ression  of 
triumphant  satisfaction.  The  court  received  the  little  wad 
and  carefully  unrolled  it  till  it  developed  .$40  of  JJellows 
Falls  money. 

A  murmur  of  excitement  ran  through  the  crowd,  while 
the  justice  in  a  severe  tone  said  :  ''  Young  man,  this  looks 
suspicious  and  requires  further  investigation."  I  think  the 
prisoner  and  myself  felt  the  strongest  revulsion  of  fec^ling, 
l»ut  in  quite  op])osite  directions— he  from  hope  to  <lespaiT, 
and  I  from  despair  to  confident  belief  that  I  liad  the  riglif. 
man. 

It  was  now  past  0  o'clock,  and  the  court  announced  an 
adjournment  till  J)  the  next  morning,  that  the  examination 
might  be  i  :  de  thorough  and  deliberate,  and  ordered  the 
constal)le  to  keep  the  ])risoner  safely  till  morning,  anil  then 
bring  him  into  court. 

As  there  was  no  jail  in  the  county,  I^Fr.  Eeed  took  liis 
prisoner  to  his  cabinet  shop,  where  he  ordered  him  to  lie 
down  on  a  pile  of  shavings  under  the  work  liencli,  when  he 
secured  the  door  and  windows  and  seated  himself  to  watch 
the  night  through.  For  myself,  J  retired  feeling  imuKMisely 
satisfied  at  the  change  the  day  had  wrought  in  my  hopes 
and  prospects. 

The  next  morning  all  hands  appeared  promptly  at  the  log 
carpenter's  shop  or  justice's  office,  where  Mr.  Spring  and  Cof- 
onel  Hamilton  appeared  for  the  prisoner.  They  filed  an  atKda- 
vit  under  the  statute  for  a  change  of  venue,  whicii,  of  course, 
had  to  be  granted,  and  as  soon  as  the  proper  ])aiiers  could  bo 
made  out,  Mr.  Justice  Ileacock  took  them  and  started  for 


EARLY  BENX'II  AND  BAR  OF  ILLINOIS. 


the  ofRce  of  Mr.  Justice  Isaac  Harmon,  who  was  the  nearest 
justice.  lie  lived  and  had  his  office,  as  before  stated,  in  a 
])art  of  John  Miller's  tannery,  which  was  east  of  the  Xorth 
I'ranch  and  north  of  the  main  river  near  their  junction. 
There  was  no  bridge  across  the  main  river,  but  ono  ncrohi.s 
each  of  its  branches  not  far  above  their  junction.  To  go  by 
these  bridges  would  nearly  double  the  distance,  so  those  of 
us  connected  with  the  case  took  canoes  and  crossed  the 
main  river  to  the  north  side,  near  where  Dearl)orn  street  is, 
and  then  Avent  on  foot  up  to  the  justice's  oHice,  where  the 
]\'ipers  were  delivered  over  in  due  form,  thus  vesting  Mr. 
Justice  Ilarnum  with  jurisdiction  of  the  case.  In  the  mean- 
time, there  only  being  canoes  enough  at  Dole's  dock  to  trans- 
port the  court  party  over,  the  spectators  hastened  around 
by  Avay  of  the  bridges,  and  the  string  of  hastening  men 
(there  were  very  few  boys  in  town)  showed  that  the  trial 
was  looked  upon  as  a  great  event,  in  the  hitherto  innocent 
but  bustling  town. 

"When  the  court  was  opened  Spring  made  a  motion  to 
quash  the  whole  proceeding  and  discharge  the  prisoner  on 
the  ground  of  insufficiency  of  the  complaint  and  made  a 
most  earnest  and  zealous  speech  in  support  of  his  motion. 
Xow  Spring  could  make  just  as  earnest  and  confident  a 
s])eech  when  he  kncAv  he  Avas  wrong  as  Avhen  he  tliought  he 
was  right.  He  certainly  manifested  no  doubt  or  misgiving 
as  to  the  correctness  of  his  position,  and  fairly  raved  at  the 
monstrous  outrage  upon  the  young  man  by  detaining  him 
for  a  moment  on  such  papers,  and  confidently  claimed  that 
the  money,  of  Avhich  we  had  fairly  robbed  him,  should  be 
restored.  All  of  this  served  to  prepare  me  well  for  a  speech 
in  support  of  my  complaint,  and  I  already  congratulated 
myself  upon  the  complete  manner  in  wliicli  I  should  expose 
the  fallacy  of  Spring's  position,  but  my  client  seemed  evi- 
dently impressed  by  his  confident  earnestness  and  looked  a 
little  anxious. 

The  moment  Spring  closed,  I  jumped  to  my  feet  primed 
to  overflowing  to  do  battle  for  my  com])laint,  when  the 


MY  FIRST  CLIENT. 


9 


court  (luiotly  said  ho  thoiif^ht  that  the  complaint  Avas  snlH- 
cient  ami  so  1  need  not  trouble  invself,  and  overrided  the 
motion. 

I\y  this  time  it  was  nearly  noon  and  some  one,  T  think  the 
justice  himself,  suggested  as  his  office  was  small  and  a  con- 
siderable ])nblic  interest  was  manifested  in  the  examination, 
the  further  iiearing  was  adjourned  to  Wattles'  tavern,  where 
the  ])roceedings  would  be  continued  after  dinner. 

Soon  after  one  o'clock,  the  court  Avas  convened  under  the 
porch  of  the  log  tavern,  a  deal  table  sup])orting  the  open 
docket  of  the  justice,  whose  dignity  was  held  np  by  a 
Windsor  chair.  The  crowd  was  considerably  augmented, 
many  in  their  shirt  sleeves,  for  it  was  a  warm  July  <hiy,  and 
all  Avere  clad  in  as  light  costume  as  comported  with  the 
dignity  of  the  occasion.  I  Avas  directed  to  call  my  witnesses, 
and  Mr.  Hatch,  the  complainant,  Avas  sworn.  lie  gaA'e  his 
statement  as  before  related,  together  Avnth  the  account  of  the 
finding  of  the  money,  Avhich  he  identified.  Kied,  the  con- 
stable, gave  an  account  of  his  search  for  the  prisoner  and  of 
his  search  of  him,  and  of  the  finding  of  the  money  inside 
his  stocking. 

The  cross-examination  of  the  witnesses  AA'as  much  longer 
than  the  direct,  but,  as  is  A^ery  often  the  case,  it  strength- 
ened their  direct  testimony.  I  may  say  here  that  more 
cases  are  ruined  by  too  much  cross-examination  than  by  too 
little.  I  have  often  seen  a  doubtful  case  made  clear  by  Avhat 
Avas  intended  to  be  a  crushing  cross-examination.  If  a  Arit- 
ness  is  intelligent  and  reasonably  self-possessed,  and  means 
to  tell  the  truth, an  attempt  to  break  him  down  byablustei'- 
ing  cross-examination  AA'ill  often  develop  damaging  facts 
Avhicli  are  brought  to  his  attention,  and  so  I  haA^e  often  seen 
cases  ruined  by  too  much  cross-examination.  I  always  made 
it  a  rule  to  prove  my  case  in  the  shortest  and  most  direct 
Avay  possible,  and  then  stop.  If  it  is  to  be  strengthened  by 
collateral  circumstances,  it  is  much  better  to  let  them  Iw 
brought  out  on  the  cross-examination  than  on  the  direct. 
No  evidence  AA'as  introduced  for  the  prisoner. 

After  the  testimony  Avas  closed  I  opened  the  case  in  a 


^ 


10 


EARLY  BENX'H  AND  BAR  OF  ILLINOIS. 


hi      •:! 


r  :^ii 


I     '      ^,:! 


llll 

J! 


sliort  spoocli  when  Sprin*^  wont  in  for  a  grand  oflfort  in  his 
t'arnost,  confident  manner  and  was  followed  by  Col.  Jlaniil- 
ton.  in  a  less  nervons,  hut  more  delihemto  nianner,  and  eon- 
sifhM'ing-  tliat  tliey  really  had  no  defense  to  make  but  could 
only  try  to  create  a  sympathy  for  the  young-  man,  their  ef- 
forts were  excellent.  Spring  had  got  in  the  first  speech  in 
the  morning  Ix'foi'o  a  Chicago  audience  and  noAV  had  ma<le 
a  fine  effort  in  which  he  had  scored  several  points  for  him- 
self, if  not  for  his  client;  I  felt  that  I  must  do  my  best  or 
rank  mnnbertwo  in  the  very  start.  I  went  at  it  in  earnest, 
reviewing  the  evidence  and  showing  its  conclu;;ive  character 
and  then  took  up  the  sympathy  part,  pointing  out  that  it 
must  be  tin?  last  resort  of  manifest  guilt.  That  if  this  was 
his  first  offense  it  was  the  i)art  of  true  sympathy  to  nij)  his 
career  of  crime  in  the  bud,  rather  than  to  encourage  him  to 
commit  further  crime  bv  fjivinf?  him  immunitv  for  this. 
That  the  communit}^  had  greater  claims  upon  our  sympa- 
thies to  be  protected  from  the  de]>redations  of  thieves  than 
any  acknowledged  thief  could  have,  and  pointed  out  the 
great  imj)ortance  of  ])roclaiming  to  the  whole  criminal  class 
that  Chicago  was  an  unwholesome  place  in  which  to 
])ractice  their  arts.  That  the  courts  must  take  the  respon- 
sibilitv  of  determinin<i:  whether  Chicaji^o  Avas  to  beccmiea  den 
of  thieves  or  an  honest  community  where  life  and  [)ro])orty 
were  to  be  protected  by  a  rigorous  administration  of  the 
law.  I  drew  a  picture  of  Chicago  in  the  future,  if  the 
courts  bv  their  decision  should  make  it  a  refufjo  for 
criminals,  and  Chicago  purged  of  crime  by  a  relentless  ad- 
ministraticm  by  the  Criminal  Courts.  It  was  for  his  Honor 
now  to  determine  which  class  of  immigrants  were  to  be  in- 
vited to  come  in,  the  good  or  the  bad.  I  dwelt  upon  this 
theme  in  all  its  phases,  at  considerable  length,  and  when  I 
sat  down  I  felt  in  the  very  atmosphere  that  I  had  struck 
the  right  chord  and  had  achieved  a  complete  success.  By 
praising  the  strenuous  and  ingenious  efforts  of  my  op- 
])onents  in  so  desperate  a  case,  I  detracted  nothing  from 
my  own  success. 


MY  FIRST  CLIENT. 


11 


i 


Tliis  wr.s  tlio  opcni?i;i'  career  of  the  tu'o  first  ]mi('tiein,u' 
lawyers  in  Chicago,  and  the  peoj)le  had  manifested  a  decuUHl 
interest  to  Icnow  whether  we  were  likely  to  prove  a  success 
or  not,  and  we  both  felt  gratided  at  their  numifest  a^)- 
])roval. 

The  court,  without  revicAvino-  the  evidence  or  the  arg-u- 
nients,  proni[)tly  held  the  defendant  to  answer  in  the 
Circuit  Court,  It  turned  out  that  he  had  several  friends  in 
town  who  ])robal)ly  knew  him  or  his  family  at  the  East  and 
who  Avent  his  bail,  an<l  ho  AViis  thus  discharged  from  the 
custody  of  (/onstable  Keed.  ilo  never  appeared  in  Chicago 
again,  so  far  as  I  know. 

^[r.  Justice  irarmon  ])romptly  scut  the  papers  to  the  ollice 
of  the  clerk  of  the  Circuit  C(juit, 

Col.  Hamilton  entered  upon  the  records  the  case  of 
the  people  against  his  own  client,  Avhich  was  the  iirst  case 
ever  entered  upon  the  records  of  the  Circuit  Court  of  Cook 
CountA'.  Mr.  Hatch  A'erv  cheerfullA'^  paid  me  ten  dollars  of 
the  recoA^ered  money,  Avhieh  just  ])aid  my  board  u])  to  that 
time.  Although  snuiU  in  amount,  it  Avas  the  greatest  fee  I 
ever  earned  (and  I  luiA'e  received  some  good  oiu\s  in  my  dny) 
if  measured  bv  the  amount  of  <>-ood  it  did  me.  The  I)ri'>Iit 
s[)ots  in  my  horizon,  lately  so  dark,  now  shown  like  a  iirma- 
ment  of  stars. 

The  second  case  also  came  to  me,  of  Avhich  I  Avill  give  an 
account  hereafter,  the  incidents  of  which  Avere  a  little  funny 
and  more  unicpie  tluin  the  Iirst.  Just  before  the  great  i\n^ 
of  1871,  Avhich  consumed  all  of  the  oUl  records,  Avith  two 
friends,  Xorman  Williams,  E^q.,  and  C.  E.  Towne,  Esq.,  1 
examined  the  old  records  and  found  the  papers,  and  as  I 
recollected  they  Avere  the  tAVO  iirst  ever  entered  there. 

This  case  then  passed  into  the  hands  of  the  State's  Attor- 
ney, Thomas  Ford,  Avho  Avas  afterward  judge  of  the  ]\[unic- 
ipal  Court,  of  the  Circuit  Court,  of  the  Supreme  Court,  and 
then  Governor  of  the  State;  nine  years  later  I  succeeded 
him  as  judge  of  the  Supreme  Court. 

Later  Spring  presided  on  the  Circuit  bench  in  Chicago 
most  acceptably. 


! 


If:      ! 


I 


II. 

MY  SECOND  CLIENT. 
THE    FIKST   CIVIL   CASE    TKIED    IX   COOK    COUNTV. 

Porhaps  ten  da.vs  after  Spuinrr  and  mvsolf  had  intro- 
duco<l  ourselves  to  tlie  little  public  of  Cl.ica-o,  as  state<l  in 
'.My  lirst  Client,"  I  obtained  mv  second  client,  which  Avill 
make  a  shorter  story  than  the  lirst.  In  the  nieantiino  1 
had  earned  a  few  dollars  postin,^,r  boolvS  for  liobort  A 
Jvinzie.  Ready  to  earn  a  little  outside  the  profession,  l)oth 
Sprino- and  myself  ha<l  undertaken  to  carrv  the  cht.in  for 
J«).sh  JIatluuvay,  wh,)ha<l  come  to  Chicago  with  me  andhml 
been  given  a  small  job  of  surveying  by  Geo.  W.  Snow  wJio 
Avas  deputy  county  surveyor.  ' 

Josh  had  thoroughly  studied  surveving  thooreticnllv,  but 
had  never  set  a  com]xiss,  while  I  had  some  practical  knowl- 
edge of  the  subject,  having  executed  several  jobs  to  earn  a 
ittle  in  my  school  days.  So  it  was  agreed  between  ns  that 
lie  should  hold  himself  out  as  a  survevor  without  advisino- 
the  ])ul)lic  of  his  Avant  of  practice,  and  that  when  he  got  a 
job  I  wouhl  go  along  to  carry  the  hind  end  of  the  chain  and 
quietly  give  him  any  instructions  he  might  need  in  startino- 
Spring  was  glad  to  go  along  to  carrv  tlie  fore  end  of  tlu- 
chain  for  he  seemed  as  glad  to  earn  a  dollar  as  I  was. 

We  found  our  starting  point,  perhaps  a  mile  north  of 
town,  east  of  the  Xorth  Branch,  in  the  timber,  and  ran 
north.  The  line  soon  ran  us  into  an  alder  swamix  and  a 
denser  one  I  never  saw. 

Every  foot  of  the  way  had  to  be  cleared  bv  the  ax-men 
so  It  was  very  slow  work.    At  noon  we  came  back  to  town 

(13) 


1 


MY  SECOND  CLIENT. 


i;] 


for  our  diiinos,  and  as  we  passed  tlio  clerk's  odico  on  our 
way,  Col.  Hamilton  came  out  and  told  us  that  a  man  had 
been  in  hisolHco  who  wanted  to  brino-  an  action  in  attach- 
ment. That  he  had  told  him  ho  must  <4et  a  lawyer  to  draw 
his  papers.  That  he  had  yono  away  but  would  bo  back  in 
the  afternoon.  We  both  wanted  the  case,  of  course,  but 
a,<,a*eed  that  wo  would  eat  our  dinners  and  return  to  our 
work  and  the  Colonel  was  to  send  the  client  after  lis  and  we 
would  trust  to  luck  as  to  which  ho  would  come  upon  lirsf, 
who.  of  course,  would  get  tho  case. 

We  told  tho  Colonel  that  we  would  be  found  in  that  alder 
swamp,  to  which  he  was  to  direct  the  client.  I  thought  that 
my  lujsition  at  tho  hind  end  of  the  chain  would  aivo  mo  the 
advanta/'o,  for  the  man  Avould  most  likely  strike  our  trail 
where  avo  entered  the  swamps,  and  so  must  necessarily  fol- 
low  it  up  and  come  upon  mo  lirst.  I  dare  not,  however, 
tell  the  Colonel  tc  advise  him  to  look  for  the  trail  along-  tho 
edge  of  the  swamp,  for  that  would  have  at  onco  disclosed 
my  fancied  advantage. 

AVo  wont  back  to  our  Avork,  but  made  very  sIoav  progress 
in  the  dense  thicket,  all  being  idle  most  of  the  time  except 
tho  ax-men,  Avhoso  constant  blows  could  1)0  heard  at  a  con- 
sideral)]e  distance,  and  I  imagine  that  Sj)ring  conlidontly 
calculated  upon  this  as  giving  him  the  advantage,  but  ho 
kept  his  thoughts  to  himself  as  avoII. 

So  soon  as  the  ax-men  had  cleared  the  AA\ay  sulTiciently  to 
let  us  advance  one  chain  Ave  did  so  and  then  sat  down  to 
Avait.  While  thus  sitting  on  a  log  AA'aiting  in  profound 
silence,  I  hoard  a  ci'ashing  in  the  brush,  and  guessed  in- 
stantly that  it  Avas  tho  coA'eted  client.  He  Avas  fighting  his 
Avay  sloAvly  through  the  thicket,  but  making  directly  for  tho 
chopi)ors.  I  thought  the  game  Avas  lost,  but  Avhon  ho  got 
opposite  me,  not  more  than  tAventy  feet  aAA'ay,  the  Devil 
took  control  of  my  hands,  and  I  lifted  the  handful  of  steel 
pins  in  my  right  hand  and  dropped  them  into  my  left,  Avhich 
made  a  pretty  loud  ringing  noise.  Instantly  tho  noise  in 
the  brush  stopped  as  if  the  traveler  A\'as  in  the  attitude  of 


14 


EARLY  BENXH  AND  BAR  OF  ILLINOIS. 


^ 


t 


listoiiinf^.  Tlio  f,i<,^lit  could  not  jic^nctmto  moro  tlian  liiill" 
the  distiinco  hctwciMi  us.  and  the  Idows  witli  the  axes  still 
(.•ontinu(>d.  This,  1  appivciated,  must  soon  start  tlio  num  on 
liis  way  to  tlioni,  so  I  gavo  the  stakes  another  rin<^iny  chish 
into  tlio  loft  luind,  whon  tho  man  started  dinn'tly  toward 
me  and  verv  soon  was  l)ef<H'(>  me  and  asked  if  I  was  a  law- 
yer.  I  felt  ^nnlty  of  havin<r  broken  the  s])irit  of  our  a^i-ee- 
ment,  if  not  the  letter,  and  regretted  what  I  had  done;  hut 
it  was  then  too  hue  to  do  much  to  rcjiair  the  wi'on<i'  which 
I  felt  I  had  done.  I  api)reciatcd  that  I  had  done  a  mean 
act,  and  I  felt  mean  about  it,  but,  as  usually  occurs  in  such 
cases,  it  redounded  to  Sjn'ing's  benefit  instead  of  mine,  of 
which  I  liave  been  always  glad,  and  wish  it  might  ever  b(^ 
so  in  such  cases.  I  told  the  inquirer  that  I  was  a  lawyei' 
and  that  Mr.  Spring,  to  whom  I  pointed,  was  another,  and 
that  either  of  us  would  be  happy  to  serve  him  pr(>ressiop- 
ally.  I  am  sure  it  would  have  been  a  relief  to  me  then  had 
he  gone  over  to  Spring  and  retained  him.  ]>ut  no;  he  said 
he  thought  may  be  I  would  do  and  asked,  if  I  could  go  with 
him  then.  I  said  ves,  and  we  started  for  the  clerk's  olJice 
together,  and  on  the  way  he  stated  his  case  to  me. 

A  man  owed  him  some  money,  who  was  a  non-resident, 
but  had  some  pro])erty  which  he  wished  to  attach. 

"We  went  to  the  clerk's  office,  where  I  prepared  the  neces- 
sary papers  and  procured  tho  writ  of  attachment,  wdiich  was 
duly  served  by  the  time  the  surveying  party  returned.  That 
was  the  first  civil  cause  ever  entered  on  the  docket  of  the 
Circuit  Court  of  Cook  County. 

Spring  was  em])loyed  the  next  day  by  John  Bates,  who 
reside  dhere  till  a  few  months  ago,  when  he  was  kille<l  on  a 
railroad  track  when  about  eighty  years  of  age,  to  inter])lead 
(which  the  process  of  claiming  the  property  attached  is 
called  in  the  statute). 

At  the  next  term  of  the  Circuit  Court,  which  was  held  in 
May,  1834:,  the  case  was  tried  before  the  first  petit  jury  ever 
impaneled  in  the  Cook  Circuit  Court,  when  Spring  beat  mo 
and  got  the  verdict.    I  got  m}'-  judgment  by  default  against 


MY  SKCOND  CLIENT. 


lo 


tho  <lt'l)tor,  but  could  novorflnd  Ji  tliiiif?  out  of  wliicli  I  could 
collect  it,  and  as  my  own  client  never  showed  up  ji;4ain,  I 
•j^ot  nothing  exco}>t  a  small  retaininn-  fee,  while  S|>rin<i'  ,i«<>t 
a  good  lee  and  a  good  client;  so  the  laugh  was  on  his  side 
at  the  end,  which  1  think  he  enjoyed  almost  as  nmch  as  he 
did  the  fee. 

I  may  add  that  I  not  only  tried  the  first  jury  case  in  the 
Cook  Circuit  Court,  but  also  the  cases  tried  before  the  iirst 
juries  impaneled  in  the  Circuit  Courts  of  Kane  County  and 
of  Will  County,  of  which  1  nuiy  hereafter  give  an  account. 


111. 


MY  FIRST  MARRIAGE  CEREMONY. 


A    FKENCII    COUl'LR. 


M 


Wlion  I  was  twenty-two  years  old  I  was  oloctod  a  justice 
of  the  ])eaco  on  the  liltli  oi  July,  l!^;M,  and  tiien  I  com- 
menced my  judicial  career.  The  election  was  for  the  Chi- 
cago ])recinct,  hut  the  jurisdiction  extended  over  the  whole 
county  of  Cook.  I  recL'ived  lb2  votes  and  my  opponent 
received  47  votes. 

I  do  not  ])ropose  t<>  confine  myself  strictly  to  judicial  or 
])rol'essiona,l  incidents,  hut  shall  introduce  incidents  and  events 
as  they  shall  occur  to  me,  illustrating  the  state  of  society, 
the  social  and  business  coiulitions  in  the  community  and 
vicinity  as  thev  existed  in  those  early  days,  when  from 
sheer  lack  of  numbers  the  crude  and  the  accomplished 
found  themselves  standing  and  associating  nearly  on  the 
same  level. 

There  were  but  few  young  people  in  Chicago  and  vicinity, 
and  I  was  acquainted  with  neai'Iy  all  of  them  and  soon 
monopolized  nearly  all  of  the  marrying  business. 

The  lirst  official  act  I  ever  performed  was  to  marr}'^  a 
coui)le.  James  Kinzie,  who  Avas  a  friend  of  the  parties, 
called  on  me  and  informed  me  of  the  service  desired,  and 
wished  me  to  go  with  him  without  delay.  1  jnit  myself  in 
presentable  a])parel  as  soon  as  jiossiblc  and  weni;  with  him. 
He  led  me  down  AVater  street  to  the  foot  of  La  8alle,  where 
we  took  a  canoe  and  crossed  to  the  Xortli  side,  and  he  then 
conducted  me  to  a  log  house  where  Ave  found  the  wedding 

(10) 


MY  FIHST  MAUHlAdK  (KUEMONY. 


17 


|)iirty  asstMnl)Ic«l.     lie  intiodiUMMl  )iu»  to  tlnMii  in  Ficiicli,  lur 
lew  of  tlicm  could  imdcrsliind  Kii'/lisli. 

Tlic  most  iiitrit'sl«'d  jcii'tirs  \vc!(»  ii  yoini','  coiiiilo  of  f'jin- 
iidiiii)  Krciicli.  ^\llo  luid  always  hcni  coFincctrd  uiili  llir  fur 
tiadc  and  muld  not  s[i(>ak  or  undcfstaiul  Kn;j,lisli,  Tlic 
I  .'idc,  I  should  jud^n'c,  was  about  twciUy-two  ycai's  old, 
I'atlici'  short,  dark  coiMph'xiont'd,  witli  a  shai'p  Mack  eye. 
The  ;.•  room  was  shoit  and  stout  with  a  fairly  intelliiicnt  c.\- 
jiression.  Kveiythin<4*  was  I'cady.  Kin/ie  was  active  and 
olHcious  and  seemed  to  run  everythine' in  hisown  way.  He 
airan;;('<l  the  parties  l»y  the  side  of  the  I'oom  and  re(|uested 
all  the  company  to  stand  up.  At  the  same  time  I  stoo<| 
u|)  Itefoi-e  them  and  asked  them  i)i  English  if  they  wished 
to  enter  into  the  contract  of  mai'J"ia;Lie.  When  Kin/ie,  act- 
in<^  as  intei'pretor,  askecl  them  if  they  wanted  t()  j^'et  mar- 
rie  I,  they  hoth  answor.'d  "  IIV.'  UV.'"  witli  an  inclination 
of  the  liead  and  an  emj)hasis  whicli  showed  that  they  were  in 
earnest.  1  then  told  them  to  join  tlieir  riyht  han<ls,  which, 
when  it  was  inter])rote(i,  they  ol)eyed.  I  then  went  throu^li 
with  a  rather  short  (Ceremony,  makin<^  them  promis(^  enou<^h, 
if  tlicy  kept  all,  to  secure  a  lite  of  happines:^,  which  Kinzic^ 
interprijtod  sentence  by  siMitenco,  and  then  I  pronounced 
them  man  and  wife  in  as  solemn  a  voice  as  I  could  assume, 
and  told  the  ^room  to  kiss  his  bride,  which,  when  he  under- 
stood th(?  command,  he  did  with  animation,  whih;  the  brides 
seemed  bocomin<^ly  embarrassed.  It  was  evich'ut  that  she 
would  have  ])referred  toliave  had  that  part  of  the  ceremony 
a  little  more  ])rivate. 

After  this  all  were  seated  on  benches,  boxes  and  stools, 
except  the  bride  and  groom  and  myself,  who  occu])ied  the 
only  three  chairs  in  the  house,  whicli  had  ])robably  been 
borrowed  for  the  occasion.  Some  refreshments  were  then 
served  including  a  sort  of  whisky  punch;  after  this  I  left 
them  to  have  a  good,  jolly  time  among  themselves.  As  I 
left,  Kinzio  slipjied  into  my  hand  the  silver  dollar  allowed  by 
law\  whicli  was  the  first  monev  I  ever  received  for  olficial 


18 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


services.  I  was  back  at  my  office  before  noon.  Tiiis  was 
my  first  fee  as  justice  of  the  peace.  It  was  well  that  my 
first  marriage  ceremony  was  performed  among-  so  jilain  a 
people,  for  as  it  Avas  I  was  sensibly  embarrassed,  although  I 
managed  to  keep  up  a  calm  exterior,  as  if  it  were  an  every- 
diiy  occurrence  Avith  me. 

Some  one  told  me  that  years  later  I  granted  a  decree  of 
divorce  dissolving  that  same  marriage  contract,  but  I  do  not 
think  that  was  true. 


,i   ! 


IV. 

MY  SECOND  MARRIAGE  CEREJIONY. 
LIFE  IN  THE  EARLY  DAYS. 

Tliere  seemed  to  be  more  Aveddings  tlian  hw  suits  ;xt 
tliiit  time  in  Chicago  and  vicinity  in  ])i-oporti()n  to  the  pop- 
uhition,  some  of  which  afforded  amusing  incidents—and 
insiructive  too— so  far  as  showing  how  things  were  some- 
times done  in  the  olden  time,  when  all  was  primitive. 
Here  I  shall  draw  on  my  memory  for  a  few  more  of  these 
events. 

Ts  ot  manv  days  after  the  matrimonial  event  last  described 
a  couple -oc  rather  ragged,  bare-footed  bovs  called  at  my 
olfice  and  told  mo  that  I  was  wanted  at  their  house  to  marrv 
their  sister.     Careful  inquiry  inform(Kl  me  that  they  lived 
m  a  log  house  in  the  woods  about  two  miles  north  of  town 
tiiat   their  name  was  Cleveland,  and  that  tlie  ])arty  was 
already  waiting  for  the  squire.     I  recoo-nized  the  house  by 
their  description  as  one  which  I  had  seen  when  out  hunt- 
ing  in  that  direction,  and  as  soon  as  I  could  prepare  myself 
pro])erly,  I  procure.!  a  horse  and  rode   out  to  the  rural 
abode  of  Mr.  Cleveland.     On  arriving,  I  hitched  my  horse 
to  a  sapling  near  by  and  went  in.     I  was  greeted' by  the 
matron  of  the  house,  who  was  a  fat,  robust  looking  woman 
while  Mr.  Cleveland  was  a  tall,  spare  man  with  a  veiy  fair 
complexion;  I  may  say  he  was  a  pronounced  blonde.     Then^ 
was  but  one  room  in  the  house,  though  that  was  of  o-o,,,! 
size.     It  served  as  kitchen,  drawing  room,  recei)tion  i-oom 
parlor  and  dressing  room,  and,  no  doubt,  as  sle(M)ino-  room 


i  i 


fi 


H! 


i 


20 


EARL\  BENCH  AND  BAR  OF  ILLINOIS. 


for  the  wliole  family,  thouf,''li  no  sign  of  a  bed  a])j)eare;l. 

The  okl  hidv  bustled  about  till  she  found  the  Avashboanl. 
Avhieh  she  deftly  clai)ped  onto  the  frame  of  a  chair  from 
Avhich  the  splint  bottom  had  long  since  disaj/poiired,  and 
invited  nie  to  be  seated,  and  I  was  seated,  and  \vi[)ed  from 
my  forehead  the  fast  flowing-  p3rs])iration  ])rovoked  by  a 
verv  warm  July  dav.  A  survcv  of  the  recei)tion  room  dis- 
closed  no  furniture  except  a  deal  table,  the  seat  which  I 
occupied  and  several  benches  of  different  lengths,  not  to 
mention  some  pots  and  kettles  in  the  corner  of  the  great 
fireplace,  and  some  shelves  in  one  corner  on  Avliich  were 
some  tin  plates  and  cups  and  other  table  furniture,  by  no 
means  exti-avagant.  Kear  this  sat  the  master  of  the  man- 
sion, who  might  have  been  lifty-tivo  years  old,  and  opposite 
to  him  sat,  on  another  stool,  a  soldier  from  the  garrison,  as  I 
juilged  from  the  clothes  he  wore.  I  soon  observed  that 
one  corner  of  the  room  was  cut  off  by  old  quilts  and  other 
jirticles  of  bedding,  and  by  the  agitation  and  whispering, 
this  was  evidently  occupied.  As  it  proved  this  was  the 
dressing  room  in  whicii  the  bride  was  being  adorned, 

I  soon  took  in  the  situation  and  directly  adapted  myself 
to  it.  I  dashed  into  a  lively  conversation  with  the  good 
lady  of  the  house  in  which  I. soon  learned  where  she  cauK} 
from,  when  she  came  West,  how  she  liked  it,  if  the  mos- 
quitos  were  bad  there  in  the  woods  (she  said  they  were  hor- 
rible), how  manv  children  she  had  and  the  ages  of  each, 
and  if  it  was  her  daughter  to  be  married  and  where  was  the 
groom.  Yes,  her  eldest  daughter  was  the  bride  and  the  gal- 
lant soldier  who  sat  in  the  c<jrner  near  the  window  was  the 
groom,  whom  I  was  to  make  happy  by  a  few  official  words. 
Then  I  speared  away  awhile  at  the  old  man,  as  he  was  con- 
sidered in  this  young  country  then,  and  from  him  I  glided 
off  to  the  soldier  and  talked  up  military  matters,  so  that  in 
a  little  while  the  restraint  which  at  first  seemed  to  be  em- 
barrassing wore  off,  and  all  seemed  quite  at  ease  and  hai)py. 

After  awhile  the  curtain  was  raised  and  the  bridal  i)arty 
came  forth  from  the  secluded  corner  and  burst  upon  us  like 


MY  SECOND  MARRIAGE  CEREMONY. 


21 


— liko — I  .am  at  a  loss  to  find  a  fair  comparison.  First  canio 
the  two  younger  sisters.  They  were  of  mediuiu  hei'^ht  for 
their  a^i^es.and  sli<^htly  l)uilt,  and  really  handsome,  one  per- 
haps fifteen  and  the  other  ei<i'hteen,  decently  and  })lainly 
dressed,  but  neatly.  One  of  these,  the  eldest,  I  reco<,mized 
as  havin<^  seen  at  In^^'-ersol's  Hotel  at  Wolf  Point,  wait- 
ing- on  the  table.  They  Avere  followed  by  the  bride,  gayly 
decked  out  in  furbelows,  but  it  was  clear  she  Avas  the 
dau<j:hter  of  her  mother.  Thou^rh  not  tall,  she  Avas  very 
stout.  I  got  u])  from  tlie  washboard  quickly  and  besjioke 
the  ])arty  cheerfully  and  pleasantly  as  I  knew  how. 

Before  any  one  was  seated  again,  the  two  boys  Avalked 
into  the  house  covered  with  perspiration  and  dust,  eiich  (mo 
having  a  gallon  jug  strapped  to  his  back.  Our  hostess  soon 
undid  the  straps  and  ])laced  the  jugs  on  the  table,  scohliiig 
the  boys  roundly  for  their  tardiness,  while  they  proteste<l 
thev  had  fairlv  run  their  legs  off,  in  order  to  get  back  in 
time  to  see  the  fun.  !^^adame  soon  found  a  milk  pan.  into 
which  she  put  a  cup  of  molasses  from  one  jug.  and  then  a 
cup  of  whisky  from  the  other,  ami  then  a  cup  of  cold  water 
from  a  pail  standing  under  the  table;  after  she  had  thus 
measured  out  about  six  (piarts,  she  went  at  it  with  a  large 
wooden  spoon  and  stirred  it  up  lively.  When  sulRciently 
mixed,  the  good  and  hospitable  lady  took  a  tin  cup  and 
dipped  it  partly  full  and  presented  it  to  me,  saying.  "  S(|uire, 
are  you  fond  of  blackstrap  i  I  always  had  a  knack  for  mak- 
ing blackstrap,  and  you  shall  try  it  first,  though  you  ain't 
the  oldest,  I  guess." 

I  jM'otested  that  blackstrap  was  my  delight  and  the  only 
drink  I  ever  indulged  in,  and  after  putting  it  to  my  lips  ]n*e- 
tended  to  drink  heartily.  I  was  so  busy  praising  the  l»ever- 
age  that  I  doubt  if  she  observed  whether  I  draidc  or  not.  I 
then  passed  the  cuj)  to  mine  host,  Avho  smacked  his  lij)S  after 
a  few  swallows  as  if  he  were  well  used  to  tlie  exercise,  lie 
refilled  the  cup  and  passed  it  to  the  son  of  ^lars,  who<lid 
ample  justice  to  the  skill  of  his  future  mother-in-law  and 
then  passed  it  to  the  bride,  and  thence  it  proceeded  to  the 


h: 


22 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


other  nif inbers  of  the  famil v.  This  refreshin<i:  scono  occiirrod 
before  the  marriage  ceremony,  an  innovati(^n  no  doubt  born 
of  tiie  belief  that  it  was  the  most  important. 

AV^hiie  this  convivial  scene  was  in  pro<^ress  I  managed  to 
get  the  innocent  soldier  outside  and  took  him  arountl  the 
corner  of  the  house  and  called  his  attention  to  the  stout 
figure  of  the  bride  which  was  so  marked  that  no  one  could 
fail  to  notice  it.  But  the  prudent  suggestion  which  I  felt 
it  my  duty  to  make  to  one  whom  I  feared  was  being  duped, 
])roved  quite  gratuitous,  for  he  said  that  it  was  all  right,  and 
lie  had  detei mined  to  marry  the  girl  anyway.  So,  as  his 
license  was  correct  and  duly  signed  and  sealed  by  Col. 
Hamilton,  I  had  no  further  scruples  on  the  subject  and  we 
leturned  to  the  cabin  and  soon  after  proceeded  to  make  the 
two  or  three  one.  I  made  the  ceremony  very  short  and  did 
not  conclude  it  with  the  directions  for  a  salutation  which 
Avas  then  quite  the  thing  among  that  class  of  peo])le.  because 
I  thought  the  situation  might  make  that  ])art  of  the  cere- 
mony rather  awkward.  I  took  my  leave  as  soon  as  possible 
jifter  having  received  the  statute  dollar  which  just  i)aid  for 
the  hire  of  the  horse. 

Of  course  I  mentioned  the  cause  of  my  visit  to  the  country 
soon  after  m v  return,  and  the  news  soon  reached  the  uarrison, 
when  a  file  of  soldiers  was  sent  out  for  the  unlucky  wight, 
who  had  ventured  to  commit  matrimony  without  the  leav(» 
of  the  commanding  ollicer,  although  I  am  not  aware  that 
any  of  tlie  articles  of  war  re(juired  such  permission.  How- 
ever, that  made  no  dilfercnce,  and  the  easy-going  bridegroom 
Avas  rudely  torn  from  the  bowers  of  bliss  and  locked  up  in 
the  guard  house  l)efore  sundown,  Avhere  I  understood  he  was 
ke])t  on  a  low  diet  for  two  weeks,  and  it  was  a  long  time 
before  he  got  leave  again. 

I  never  interested  myself  to  inquire  how  the  disconsolate 
britle  bore  her  i2:rief  in  the  meantime  or  since. 


V. 


ANOTHER  CONNUBIAL  EVENT. 
LIFE    LV    THE    COL'NTRV A    WEDDING    DI.VNKII, 

One  Saturday  in  March,  1S35,  I  was  called  111)011  at  111  v 
olHce,  by  a  stout,  vigorous  young  farmer  named  Powell,  jind 
re()uested  to  go  the  next  day  ahout  sixteen  miles  up'  the 
north  branch,  and  unite  him  in  marriage  to  a  young  ladv 
liviug  in  a  h)g  liouse  at  Dutchman's  Poiut.  I  promised  to 
be  on  hand  by  noon  the  next  day  and  he  dei)arted  manifestlv 
in  a  very  happy  fram,.  uf  miml,  as  if  contemplating  a  lono- 
life  of  future  hap])iness,  ° 

The  next  morning  was  bleak  and  chillv  with  a  strong 
northeast  Avind  blowing,  but  when  the  event  of  a  lifetime 
depended  on  my  presence,  and  especially  when  I  remembered 
that  1  hoped  that  at  no  very  distant  day  I  should  recpiire  a 
similar  service  of  some  one,  and  how  I  would  want  to  chok(> 
him  should  he  disappoint  me,  I  drew  on  mv  overcoat  soon 
after  breakfast  and  went  to  a  livery  stable  and  mounted  a 
stout  looking  cob,  and  struck  out  into  the  bleak  prairie,  i)re- 
senting  my  right  cheek  to  the  cohl,  damj)  wind. 

The  low,  flat  prairie  was  covered  with  watei-  for  the  first 
eight  or  nine  miles  which  si)lashed  up  at  every  ste]),  niid 
frequently  the  horse  would  ste])  close  beside  a  era wlish' hole, 
with  which  the  prairie  was  honey-combed,  when  the  water 
would  shoot  up  like  a  geyser  to  the  height  of  several  feet, 
often  giving  me  a  good  sprinkling  of  the  muddv  water  and' 
more  than  once  striking  me  fairly  in  the  face.  '  I  had  taken 
the  precaution  to  tie  a  Avrap  around  mv  neck  .so  as  to  i)r(> 

(23) 


f '  • 


24 


EARLY  BENCH  AND  DAR  OF  ILLINOIS. 


h'-H 


blil  I 


toct  1113'  sliirt  collar  and  bosom,  long  loggins  protectoil  1:1  y 
lower  ganiicnts,  and  the  overcoat  received  most  of  the 
showers  of  mud  which  came  above  my  knees,  lUit  the 
boots!  Xothing  couhl  be  done  for  them,  and  they  were 
soon  so  soiled  that  their  color  was  indistinguishable.  ]>ut 
that  was  no  matter.  Evoi'vbody  was  prepared  to  make  al- 
lowances for  that  condition  of  things,  so  I  gave  myself  no 
trouble  about  it. 

Notwithstanding  the  apparent  discomforts,  that  was,  in 
truth,  a  hai)py  ride.  The  fact  is  I  Avas  something  in  love 
myself;  and  so  my  thoughts  were  far  away  from  the  mud 
and  Avater  and  the  chillv  Avin-l  and  the  I)leak  ])rairie,  revel- 
ing in  thoughts  Avliich  I  need  not  explain,  and  building  air 
castles  of  huge  proportions,  Avhich  I  decorated  with  the  most 
elaborate  architecture  and  oi-namented  Avitli  the  brightest 
colors.  Whoever  has  been  in  this  frame  of  mind,  Avill  ap- 
]»reciatc  how  utterly  oblivious  I  Avas  to  all  of  the  actual  sur- 
roundings and  lived  for  the  time  in  a  sort  of  Elysium,  and 
listened  to  the  songs  of  the  birds  of  paradise.  Thus  hour 
after  hour  my  hoi'se  plodded  along  at  a  Avalking  jace. Avhile 
I  was  in  a  state  of  oblivion  to  my  surroundings.  At  length, 
after  I  had  covered  eight  or  nine  miles  of  this  low,  Avet 
])rairie,  I  struck  higher  ground  and  it  Avas  possil)le  to  in- 
crease my  sjwed,  Avliich  I  did,  for  I  saAv  I  Avas  likely  to  l)e 
late  to  the  Avedding;  I,  hoAvever,  arriA'ed  at  tlie  designated 
place  in  good  time.  The  house  Avas  a  large,  commodious  log 
structure  Avitli  several  rooms  on  the  ground  floor.  What 
Avas  most  cheering  to  me,  Avas  a  great  Avood  fire  in  an  old- 
fashioned  fire-place  at  one  end  of  the  house,  Avhich  Avould 
a<lmit  great  logs  four  or  live  feet  in  length,  and  seemed  big 
enough  to  r(  ast  an  ex.  This  lire  avis  occu])icd  by  the 
culinary  operations,  Avhich  Avere  going  on.  A  line  turkey 
and  a  ])lump  ])ig,  Avhich  Avere  suspended  before  it  and  Avere 
being  constantlv  basted  l)v  a  ten-vear-old  bov,  Avhose  face 
Avas  as  red  as  a  beet,  diffused  through  the  room  an  appetiz- 
ing fragrance  which  made  me  rejoice  that  dinner  time  Avas 
•   ,  ■  "      ;;pproaching,  and  my  mouth  fairly  vA'atered  at  the 


ANOTHER  CONNUBIAL  EVENT. 


2-") 


tlioufjlit.  A  nico  party  of  well  drossod  coiiiiti-y  people  oeeu- 
piod  the  room,  who  were  as  chatty  and  as  jolly  as  the  occasion 
required.  Powell  met  iiu?  at  the  door  an<l  without  oivino- 
me  time  to  take  off  my  muddy  wraps  led  me  <lii'ect  to  the 
bride  to  whom  he  introduced  me  with  a  flourish,  which 
showed  that  the  situation  produced  in  him  noend)arrassment 
inore  tha.i  as  if  he  had  heen  married  once  a  week  for  the  last 
live  ycai's.  Not  so,  however,  with  the  girl ;  she  seemed  con- 
sideralily  end)arrassed  as  rJl  eyes  were  turned  u])on  liei- 
She  was  taller  than  the  avera<j-e  of  women,  and  faij-ly  stout 
in  projjoi'tion.  Indeed  she  was  a  larj-e,  well  formed  woman 
of  fair  comjilexion.  She  was  decidedly  awkward  in  her  ac- 
tions, evidently  Jmvin«>'  seen  but  very  little  of  even  country 
society.  This  mi<>-lit  have  been  exi)ected  Avhen  nei«>hl„„'s 
were  miles  away,  and  she  probably  had  not  a  sin,i:le  acquaint- 
ance in  town,  and  had  never  been  there  more  than  to  ])ass 
throun-h  it  on  her  way  AVest.  In  fine,  she  was  troubled  to 
know  where  to  ])ut  her  hands  and  feet. 

I  did  rny  l)est  to  put  her  at  ease  by  a  cheerful,  easy  and 
commonplace  conversation  and  without  staring-  at  her. 
Her  father  and  mother  were  standing  near  by  looking  on, 
to  whom  I  was  next  introduced,  and  then  I  was  p>ai'aded  in 
my  muddy  leggins  and  overcoat  and  introduced  to  all  the 
rest.  I  was  then  permitted  to  take  off  my  outer  coverin«>-. 
A  boy  had  already  been  sent  to  take  care  of  my  horse,  aiul 
I  Avas  seated  near  the  fire  to  warm  myself  a  little.  This 
was  scarcely  done  when  Powell,  who  acted  as  master  of 
ceremonies  at  his  own  wedding,  came  up  to  me  and  placed 
in  my  hands  his  marriage  license  and  intimated  that  it  was 
time  to  ])roceed  to  business.  The  license  showed  that  the 
l)ride  was  fourteen  years  of  age  and  the  groom  twentv-six. 
He,  no  doubt,  noticed  my  surprised  look  as  I  again  glanced 
at  the  full-grown  liride,  and  cpiietly  whispered  tonuC  -  It  is 
all  right;  girls  are  like  new  potatoes.  They  are  old  enough 
as  soon  as  they  are  big  enough.  She  will  "keep  house  with 
the  l)est  of  them." 

With  this  he  skipped  back  to  the  side  of  the  blushing 


20 


EARLY  BENX'H  AND  BAR  OF  ILLINOIS. 


\i 


w 


HI 


III 


hridc,  seized  lior  hand  and  raised  her  to  her  feet.  At  the 
same  time  I  advanced  to  the  middle  of  the  room  in  front  of 
them  and  requested  the  company  all  to  arise,  tliinkiiig  she 
Avoidd  feel  less  embarrassed  Avhen  all  were  standing.  I  then 
^^'•ave  them  a  short  lecture  on  the  solemnity  of  the  occasion, 
and  the  g'l-avity  of  the  resj)onsibilities  they  were  about  to 
assume,  and  the  course  of  conjugal  life  which  would  surely 
result  in  the  greatest  possible  measure  of  happiness  to  both. 
This  no  doubt  sounded  funny  from  a  young  fellow  not  yet 
twenty-three  years  of  age  and  who  knew  no  more  about 
matrimony  than  he  did  al)out  preaching,  nor  half  so  much, 
but  the  truth  is,  he  had  already  begun  seriously  to  think 
about  it  and  had  in  reality  thought  much  upon  the  ju'oper 
course  for  husbands  and  wives  to  pursue  toward  each  other 
to  enable  them  to  live  hapi)ily  together,  and  I  am  not  sur- 
})rised  that  it  had  to  break  out  on  so  proj)er  an  occasion. 

"Well,  I  married  them  good  and  strong,  but  at  the  conclu- 
sion I  thought  I  would  not  gratify  the  groom's  love  of  dis- 
])lny  and  increase  the  bride's  embarrassment  by  directing 
him  to  salute  his  bride,  vet  he  did  it  all  the  same,  and  she 
submitted  meekly,  as  if  it  were  inevitable,  as  he  had  no  doubt 
informed  her  that  it  was  indispensable  to  a  good  marriage, 
and  very  likely  had  acted  upon  the  belief  that  de  hene  esse 
is  just  as  safe  and  just  as  proper  under  the  circumstance  as 
nunc 2>vo  tunc. 

I  then  shook  hands  with  the  newly  married  couple  and 
congratulated  them  cordially,  and  my  example  was  followed 
by  only  a  part  of  the  com])any,  the  rest  evidently  being  too 
ditlident  to  thus  display  themselves.  So  soon  as  all  was 
over  the  good  housewife,  the  mother  of  the  bride,  made  a 
movement  for  the  big  family  table,  which  was  ])ulled  out 
into  the  middle  of  the  room,  and  many  willing  hands  helped 
her  to  set  it,  and  to  dish  up  as  good  a  dinner  as  I  ever  wish 
to  sit  down  to.  The  carving  was  not  of  the  most  artistic 
character,  but  the  turkey  and  the  pig  and  the  boiled  ham 
were  soon  reduced  to  ample  portions,  while  the  fricasseed 
chickeu  had  been  dismembered  before  it  was  put  into  the 


ANOTHER  CONNUIJIAL  EVENT. 


27 


pot.  T'oilcil  potiitoos  and  iiiiisliod  potutoos,  corn  lu-oad  and 
whit('  l)n>a(l,  all  doiu'  to  pci'lcction,  lillcd  out  a  diniUT  that 
an  eniporor  niiylit  liavo  envied,  and  my  long  cold  lido  had 
iittod  ino  gloriously  for  just  such  a  dinner.  Cotlee  was  th(> 
oidy  beverage,  but  it  was  as  good  as  the  rest  of  the  repast 
and  nothing  more  was  wanted. 

The  good  woman  of  the  house  watched  my  eating  with 
evident  satisfaction  and  listimed  to  my  encomiums  of  her 
skill  with  even  more,  and  when  I  expn^ssed  the  hope  that 
her  daughtL'r,  the  bride,  could  do  as  well,  she  vras  still  more 
pleased  and  assured  me  that  she  had  been  all  her  life  teach- 
ing tliat  girl  all  about  it  and  that  she  know  it  from  A  to 
i//!ird. 

We  all  showed  stalwart  appetites,  and  even  the  bride  vin- 
dicated her  sturdy  appearance  at  the  trenclier,  and  it  was 
hard  to  get  her  to  suspend  the  ]n'ocess  of  mastication  long 
enough  to  express  her  opinioiis  on  any  suljject,  if  she  had 
any  brilliant  ones. 

Soon  after  dinner  I  expressed  my  wish  for  my  horse  and 
the  small  boy  was  sent  for  him,  while  I  endeavored  to  get 
inside  my  muddy  wraps.  When  this  was  acconn)lished 
Powell  came  u])  to  me  and  placed  a  silver  dollar  in  my  hand 
with  the  air  of  one  who  thought  he  was  doing  the  hand- 
some thing  and  he  did  not  care  who  knew  it,  evidentiv 
exi)ecting  ])rofuso  thanks;  but  when  I  remembered  that  1 
must  pay  two  dollars  for  the  hire  of  the  horse,  and  as  it  was 
too  late  to  return  to  town  I  must  imi)ose  myself  upon  the 
hos])itality  of  some  friend  in  the  country,  I  did  not  feel 
like  thanking  him  very  much,  so  I  took  my  leave  with- 
out great  ceremony,  mounted  my  horse  and  rode  awav 
across  the  bleak  prairie  toward  the  hospitable  ab(jde  of  .Mr. 
JMansel  Talcott,  on  the  O'Plane  river,  eight  miles  distant. 

The  generous  dinner  I  had  eaten  so  fortified  the  inner 
man  that  the  outer  did  not  mind  the  cold  blast  which  was 
now  nearly  to  my  back.  I  conld  not  help  reflecting  on  the 
way,  that  she  whose  destinies  I  had  just  united  with  the 
man  whose  disposition  I  had  just  seen  illustrated,  would  not 


EARLY  BENCH  AND  HAR  OF  ILLINOIS. 


i 


1)0  likely  to  1)0  ovo'  bunlonod  with  too  much  pin  nioncy: 
in  fact  1  (loubtod  if  she  ever  ^ot  iinv.  I  have  m^vci'  hcaid 
since  how  that  was,  though  I  have  heard  that  Powell  proved 
a  man  of  some  husiness  capacity  and  worke<l  a  nnmhcr  of 
men  on  his  farm,  whom  he  fed  principally  on  boiled  white  tur- 
nips, asserting  that  if  they  wunld .'<t>tff'  t/wir  .<^/i !/•/.<<  \'\i]\  enouirli 
of  that  they  wouhl  not  starve,  and  I  was  ready  to  believe  it. 

Movci  than  lifty  years  later,  at  a  rece))tion  <^iven  by  the 
raluniot  Club  to  the  ohl  settlers  of  (Jiiicai^o,  the  youni;' 
bride  of  that  lon^  time  a<^o,  introduc:':l  herself  to  mo  in  a 
fraidv  and  easy  way,  slunvini^  that  she  had  seen  much  of  the 
world  since,  and  she  had,  for  she  had  kei)t  a  country  tavern 
just  beyond  the  suburbs  of  the  city.  She  had  lost  her 
Powell,  but  had  cajitured  a  second  husband  who,  I  have 
since  learned  from  ancjther  source,  did  not  turn  out  all  she 
had  hoped  for,  and  frcmi  whom  she  filed  a  bill  for  a  divorce, 
in  which  she  was  defeated  by  having  shown  too  much  kind- 
ness to  the  defendant  pendente  lite.  P.ut  for  all  this  she 
now  seemed  jolly  and  hai)py. 

I  arrived  at  Mr.  Talcott's  a  little  before  sunset  and  was  re- 
ceived at  the  door  by  the  old  gentleman  (even  middle-aged 
men  seemed  old  to  me  then),  with  that  open-handed  and 
generous  hospitality  which  was  a  part  of  Mr.  Talcott's  very 
being,  and  which  I  had  often  before  enjoyed,  and  with  a 
welcome  by  the  ladies  inside  not  a  whit  the  less  cordial. 

These  consisted  of  INIrs.  Talcott  and  their  daughter  An- 
geline,  a  young  lady  perha])s  twenty  years  of  age,  sniiirt, 
Avell  educated  and  accomplished,  and  an  ornament  to  any 
societv  into  whose  association  she  mijHit  be  thrown. 

Only  the  summer  before  they  luid  heard  that  I  was  sick 
in  town,  and  sent  for  me  and  kindly  nursed  me  for  two 
weeks  till  I  got  able  to  return  to  my  work. 

Angeline  was  one  of  the  very  few  friends  to  whom  I  had 
confided  my  own  love  alfair  at  the  East,  in  Avhich  she  took 
a  lively  interest  and  seemed  as  pleased  as  I  Avas  to  talk 
about  it,  and  she  made  me  describe  my  sweetheart  over  and 
over  again,   till   she   said  she  would  know  her  on  sight, 


I  < 


ANOTHEU  C'ON'NL'rUAL  KVENT. 


2i) 


tliouo'Ii  sho  wondi'ivil  liow  I  should  know  lior  iiiysflf  wlicii 
she  rcmeiiih-i'.'d  tli:it  I  li;i  1    novor   |).issj:l  a  word  with  her 
orally,  hut  that  littK'  \)k'vv  of  roiiiimcc  coiiiurtcHl  with  the 
atl'air  seemed  to  iiii  pa  it  to  it  an  additional  interest.     Her 
mother  was  a  most  ehannin^-  woman,  of  rather  a  frail  ap- 
peai-ance,  yet  smart  and  active,  ahout  Illty-Hve  years  of  ao^, 
with  a  lively,  cheerlul  disposition,   which  made  her  enj7)y 
youn^^  people's  society,  and  with  whom  her  sympathies  were 
as  much  awakened  as   they   would  have  been  thirty  years 
before.     8he  was  a  charmin<,r  comi)anion   to  both  old  and 
youn<i'.     Mr.  Talcott  was  an  uncommonly  stout  man.  with 
an  exterior  a[.pearance   rather  i-ouuh,  but  with  a  heart  bi^- 
enough  for  several  common  men.     \or  must  I  omit  to  nn'i"- 
tion  Mansel  Talcott,  Jr.,  who  was  then  a  lad,  [  should  think, 
al)out  sixteen  years  old,  who  already  showed  evidence  of 
that  business  capacity  which   he  afterward  disi)layed,  and 
that  kindly  nature  and  generous  heart  for  which  he  was  dis- 
tinguished in  manhood. 

During  the  evening  I  gave  an  account  of  the  late  wed- 
ding, and  all  were  vastly  amused;  especially  at  the  fee  I  had 
received  and  my  way  of  describing  the  ceremonv. 

Angelino  had  been  commissioned  to  engage;  mv  official 
services  at  another  wedding,  about  two  \.-eoks  lience,  at  the 
house  of  a  neighbor  two  miles  up  the  rivei-. 

It  was  arranged  that  I  should  come  out  in  the  forenof)n 
of  the  day  of  the  wedding,  and  spend  the  afternoon  at  the 
house  of  my  hosi)itable  friend,  for  the  wedding  was  to  occur 
in  the  evening. 

The  next  morning  I  returned  to  town. 


in. 


vr. 


ANOTHER  WEDDING  IN  RURAL  LIFE. 


RE  I-  LKCT I O  NS — 1£  ICM I N 1 6C  K  NC  ES. 


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On  a  pleasiint  sprinir  morning-  in  ]\rarch,  1885,  I  nionntcd 
my  horse  ami  struck  out  over  the  unbroken  prair*  >  lor  tlii' 
house  of  my  very  kind  Iriend,  ]\rr.  Mansel  Taleott,  to  lullill 
the  appointnunt  which  1  had  made  some  days  bc»Foro  with 
Miss  Taleott,  to  unite  intiie  bonds  of  wedh)ck  a  rural  couple, 
Avhose  love,  I  doubt  not,  was  as  sincere  and  as  earnest  as  if 
they  had  walked  in  a  hi«,^her  circle  of  society. 

These  errands  of  love  always  made  me  meditative  and 
happy.  They  seemed  to  remind  me  of  the  joyous  time  to 
come,  in  the  hoi>es  of  which,  after  so  many  years  have  passed 
jiway,  I  can  truly  say  I  was  not  disapi)ointed;  nay,  my 
brightest  dreams  have  been  more  than  realized,  1  built  air 
castles  big  and  beautiful.  Naturally  of  a  hoi)eful  disi)osition 
1  was  ever  feasting  on  hopes,  not  l>h"ndly  as  if  they  were  to 
be  realized  by  destiny,  but  determinedly,  as  if  they  must  be 
realized  by  my  own  efforts  and  merits,  with  the  help  and 
support  of  one  who  I  felt  sure  Avould  sympathize  with  me 
and  encourage  me.  In  this  I  have  not  been  disappointed. 
In  whatever  ol."  success  has  attended  mv  etforls,  she  has  done 
her  full  share,  and  now  in  old  age  we  are  ))assiiig  down  the 
hill  together,  nith  the  same  cheerful  concor;!  and  sympathy 
which  has  ever  since  characterized  our  lives.  If  the  ascent 
was  steep  and  laborious,  its  descent  is  gentle  and  quiet. 
The  wavside  seems  strewn  with  flowers  whose  fraij-rance  is 


grateful  and  refreshing. 


(30) 


ANOTIIKIC  WKDDINd  IN  IIUKAL  LIFE. 


;u 


It  was  diirinf,''  inv  s(»lit:ii'v  ridos  over  tlu^  prairie-;  tli;it  T 
used  U)  iiidul^'o  in  tliosr  day  drciiiiis  and  I'ornu'd  plans  and 
I'csolntions  to  inaUc  tlicm  realities.  AVIien  eimaucd  in  real 
liusiiM'ss  1  hud  the  toreo  of  will  to  «'.\p(d  them  entirely 
Ironi  my  mind  and  to  eoneentratci  my  thonn^hts  relentlessly 
U|)on  whiitovcr  1  iiad  in  hand.  If,  as  the  time  a|>|)roa('hed, 
this  was  sometimes  hard  to  do,  yot  I  did  itand  <iav(;  my  un- 
divided thoughts  tu  business.  I  knew  I  had  to  work.  1 
resolved  to  woric,  and  to  some  purpose. 

Sweet  is  the  consciousness  of  a  well-sj»ent  life.  I  can 
survey  tin;  i)ast  in  u  calmer  mood  than  I  then  surveyed  the 
future,  and  am  astonished  to  soe  how  well  that  future  has 
l)Oon  realized.  Indeed,  my  success  luis  been  moi-e  than  I 
then  anticipated,  my  domestic  hapi)iness  has  lieen  moro 
than  I  then  dared  to  ho]K^  for,  l;ut  my  hihors  have  been 
harder  than  1  then  suj)posed  that  I  wascai)able  <»f  perform- 
in«>',  though  I  have  ovei'como  the  obstacles  which  Ihave  en- 
countered in  the  wav  with  £'-reater  ease  than  1  then  thought 
]tossible.  I  have  developed  business  capabilities  outside  of 
my  profession,  of  which  I  was  then  iinconscaous,  and  wliich 
my  imlustrv  and  love  of  labor  liavo  turned  to^ood  account. 
It  is  a  sweet  rellectiou  in  the  decline  of  life  to  believe  that 
I  have  not  live<l  in  vain,  that  I  have  contri])Uted  my  mite 
to  the  well-beino-  of  mankind,  and  that  this  seems  to  be  ap>- 
]n'eciated  by  my  fellow-men;  that  I  have  in  some  measure 
tilled  th(3  place  designed  for  me  by  Ilim  who  regulates  the 
economy  of  the  Universe. 

I  may  now  say  to  young  lawyers  that  they  can  only  suc- 
ceed in  their  ])rofession  by  hard  work  and  by  the  highest 
integrity  and  honoral)le  ])ractices.  The  first  is  necessaiy  to 
learn  what  the  law  is  and  its  projjcr  a]»j)lication  to  given 
facts.  The  next  is  indispensable  to  secure  lucrative  employ- 
ment, lattle  tricks  and  sharp  practices  may  succeed  for  a 
time  in  little  cases,  but  they  can  never  secure  an  honorable 
reputation,  which  is  indispensable  to  marked  success.  They 
are  evidence  A  a  little  mind  and  can  not  secure  a  larae  re- 
Avardj  either  in  reputalion  or  financially.     Little  advantages 


1 


EARLY  BENCH  AND  BAR  OF   ILLINOIS. 


¥ 


I:  ; 


i 
i  1 


I 


(lislionoi'iibly  obtained  arc  worse  than  honorable  (lefeats. 
]I(>hl  your  honor  as  sacred  as  your  soul's  welfare.  Show 
Yourselves  wortliv  of  the  hi^iiiest  trust  and  vou  will  be 
ti'usted;  not  without.  AV'ork  hard  and  think  sti'ouuly  and 
d('lii)erately.  Lincoln  was  a  great  exann)le  of  all  these 
charactei'istics. 

1  arrived  at  the  hospitable  house  of  my  fi'iend  for  dinner, 
and  was  welcomed  with  a  cordiality  which  bespoke  the  kind- 
ness of  heart  which  there  prevailed.  The  afternoon  Wi.s 
]»leasantly  spent  and  as  the  shadows  of  evening-  l)egan  to 
fall,  Angeline  and  I  mounted  our  horses  and  took  the  trail 
leading  u])  the  river  along  the  skirts  of  the  timber  which 
liordered  its  banks,  ^[y  companion  was  to  be  bridesmaid 
and  we  had  a  sort  of  rehearsal,  and  I  received  particular  in- 
structions on  some  points  which  she  thought  important,  and 
es[)ecially  was  I  to  require  the  salutation  of  the  bride  by  the 
groom  at  the  close,  the  contemphition  of  which  she  seemed 
to  much  enjoy,  and  she  insisted  that  I  should  do  the  same 
thing  immediately  after,  and  she  wcnild  arrange  it  so  that 
the  Avhole  comiJany  should  I'oHow  my  example.  This  I 
promised  but  with  the  condition  that  the  bridesmaid  should 
receive  the  same  attention,  to  which  she  at  tii'st  demurred, 
but  finally  said  slie  wouhl  manage  that  all  right. 

It  was  dark  when  we  arrived  at  the  log  cabin  of  the  set- 
tler, who  was  among  the  lir:;t  to  locate  in  the  OTlane 
timber.  It  Avas  a  good  sized,  connnodious  house  for  a  fron- 
tiei'  settler,  and  all  about  bespoke  neatness  and  ivspecta- 
bility.  Several  of  the  neighbors  were  assembled  to  witness 
the  ceremony.  Angeline  introduced  me  to  them  all,  for  she 
had  made  the  acquaintance  of  nearly  all  of  the  settlers  for 
miles  around.  She  had  given  me  no  description  of  the 
bride  or  grtxnn,  only  that  they  knew  nothing  of  what  is 
called  society  but  had  only  associated  with  frontier  life,  and 
that  the  l)ri(k  ..  family  belonged  to  the  Society  of  Fi'iends, 
and  so  I  must  expect  to  see  everything  plain — very  i)lain. 
As  mv  familv  belonged  to  that  societv  and  I  had  been 
bi'ou^ht  up  under  its  teachings,  I  was  glad  to  learn  that  I 


ANOTHER  WEDDING  IN  RURAL  LIFE. 


^8 


o 


sli.^nld  moot  soiiio  of  that  faitli  wliich  my  motlior  so  much 
lovod,  out  on  this  romoto  front ior. 

Aiii-'olino  had  alroady  told  th<'iii  of  myantooe(hnits  in  tin's 
roirard.  and  douhtioss  this  had  its  inlluonce  in  tlio  soloction 
which  was  made  of  tho  oIKciatino-  ollioor,  for  tho  Frionds 
wdl  tolei-ato  a  mama^r-o  ceremony  performed  by  a  civil 
iinioistrato,  while  they  can  not,  Avith  a  ch^ar  conscience,  he 
l>ivsent  at  one  celebrated  by  a  preacher  of  another  denomi- 
nation. 

The  l)ride  was  youn?,  and  the  Q-roojn  was  not  many  rears 
her  senior.     She  was  quite  ].lain  lookin^-,  b„t  he  was  one  of 
tlie  handsomest  younir  men  I  over  saw.     His  Avas  not  an 
•  'IfiMiiinate,  delicate  beauty,  but  a  manlv,  sturdy  l)oanty,  if 
that  term  be  proper  when  si)eakino^  of  one  of  medium  si'/(^ 
yet  of  a  ])OAye]'ful  build,  uniform  features,  a  fnndv.  open  an(l 
winning  countenance,  towai'd  whom  one  felt  oneself  di-awn 
as  if  by  a  cord  of  fViendshii),  ""t  to  say  adminiticm,  at  iirst 
sio-ht.     He  Avas  a  decided  brunette,  but  this  rather  added  to 
ins   manly   ])eauty.     I   soon   learned    that    he    AA'as  as  ui^ 
acquainted  with  the  Avays  of  the  Avorld   as  one   who  h.-td 
si)ent  his  life  on  a  farm  avoH  could  be,  and  had  never  boon 
m  any  town  more  than  to  ])ass  throuo-l,  it,  and  had  onlv  as- 
sociated with  those  in  similar  conditicms.     He  was  of  -oo,! 
natural  parts  and  a  clear  intelh>ct.  ^ 

He  soon  intimated  to  me  that  he  aa-ouI,!  liko  to  see  me 
alone,  so  avo  took  a  walk  out  of  doors,  when  ho  tohl  me  tluit 
lie  liad  never  seen  a  Aveddini;-,  and  would  like    to    b(.    in- 
structed as  to  the  mode  of  ])roceedin,i.-  and  what  he  was  ex- 
pected to  do.     I  then  rehearsed  to  him   the  order  of  the 
ceremony  to  its  conclusion,  that  he  would  have  nothiu'-  to 
do  but  to  assent  to  the  questions  which  I  should  ask  him 
and  to  join  rioht  hamls  with  the  lady.     That  at  the  con- 
elusion  of  the  ceremony  I  siiould  <lirect  him   to  salute  his 
bride,  Avhich  lie  must  do  as  an  evidence  that  h(>  recon-ni/,.,! 
her  as  his  lawful  wife;  this  meant  that  he  should  kiss  her 
then  and  there. 

In  the  meantime  Ann-eline  had  been  getting  the  bride 


34 


EARLY  BENX'II  AND  BAR  OF  ILLINOIS 


X 


V 


I 

i   I 


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readv  for  the  dread  event.  She,  too,  Iiad  never  witnessed  a 
weddins^  and  knew  notliing  of  its  proceeding,  but  had  some 
idea  of  its  consecjuenees. 

The  bridesmaid  gave  her  minute  instructions  as  to  liow 
slie  shouhl  act  her  part,  but  carefully  al)stained  from  any 
intimations  to  the  concluding  ])erforinance,  about  which  I 
was  so  particular  to  insti'uct  the  grooiU. 

When  we  returned  to  the  house  the  party  seemed  to  be  in 
waiting  for  us.  The  bride  and  l)i'idesmaid  were  seated  by 
themselves  at  one  side  of  the  room,  while  the  company  were 
seated  as  far  awav  as  thev  could  <j;ct.  As  I  saw  evervthini«- 
was  ready,  I  told  the  groom  to  take  his  place  at  the  right 
Jiand  of  the  ])ride,  who,  with  the  bridesnuiid,  rose  to  her 
feet  in  good  order.  She  was  dressed  in  white  muslin,  as  was 
belitting,  but  the  ])attern  of  the  Avechling  garment  was  very 
domestic  and  uni(]ue.  In  sh(jrt,  it  was  precisely  that  of  a 
lady's  nightgown  Avith  a  yoke  at  the  top  and  a  most  elab- 
orate skirt  and  large  sleeves.  Tiiis  Angeliue  had  gathered 
around  the  waist  with  a  broad,  red  ribbon,  which  I  think 
she  had  brought  along  for  the  ])urj)ose,  as  a  sort  of 
we(l<ling  present,  for  I  afterward  learned  that  she  had 
])lanned  that  wedding  costume  to  suit  her  own  fancy,  or,  I 
may  say,  freak.  It  was  in  the  main  well  ada])ted  to  the 
plain  and  sim))le  taste  of  the  Friends,  though  the  red  belt 
and  big  bow  in  front  were  a  reluctant  concessi(m  to  the 
vanities  of  t!ie  Avorld.  The  hair  of  each  of  the  ladies  was 
disposed  of  in  the  ])lainest  jxtssible  Avay  and  Avithout  the 
least  ornament,  and  I,  who  had  in  early  life  been  taught  to 
admirr'  ])lainness  in  everything,  thought  they  really  looked 
beautiful. 

I  placed  myself  in  the  si)ace  in  front  of  the  bridal  party 
and  then  asked  the  company  to  arise.  I  proceeded  to  de- 
•liver  a  lecture  u])on  the  solemnity  of  the  occasion  and  the 
great  responsibilities  Avhich  these  parties  were  about  to 
assume  and  hoAV  they  slujuld  l)ear  themselves  toAvard  each 
other  in  order  to  insure  the  greatest  amount  of  domestic 
liappincss,  and  all  of  that.     During  this  deliver}'  I  tried  to 


I 


ANOTHER  WEDDING  IX  RURAL  LIFE.  35 

inm-ino  myself  a  person  of  fifty,  who  knew  well  wli.t  lie 
Ava.  tallan-  about,  instead  of  a  young  scjuire  of  twentv- 
tliree. 

I  knew  Miss  Taleott  was  all  the  while  tmn<r  to  catch  niv 
eye  so  that  by  some  ludicrous  or  -rotes(jue  look  or  expres- 
sion ot  countenance  she  could  make  me  break  down  or 
make  me  laugh,  but  I  refused  to  gratifv  that  desire,  and 
kept  my  eyes  steadily  iixed  upon  the  two  interested  parties 
wiio  were  a  real  study  at  that  time. 

At  the  close  of  my'lecturc  I  proceeded  with  theceremonv 
proper,  which  I  soon  concluded  and  i)ron(,unced  them  man 
and  wite,  when  I  directed  the  groom  to  salute  his   bride 
As  this  was  the  part  which  he  had  no  doubt  most  held  in 
exi)ectation,  he  made  a  fierce  ^rab  at  his  new  made  wife 
and  attempted  to  execute  the   order.     This  was  entirelv 
"nexi)ected  by  her,  and  as  she  jjrobablv  had  no  idea  of  the 
meaning  of  the  direeti,m  which  I  had  given,  she,  no  doubt 
tlH.ught  the  young  man  had  lost  his  mental  balance  as  she 
had  nearly  done  herself;  she  rushed  awav  from  the  sup,)ose,l 
•natlman  in  real  terror  and  actually  fou-ht  back  in  a  cat- 
■1^'e  manner.     But  he  was  equal  to  the  occasion,  an<l  fol- 
mved  her  up  with  such  manly  vigor,  quite  to  the  corner  of 
the  room,  to  which  she  retreated,  that  bv  su])erior  strenc-th 
ho  accomp  .shed  his  ,)urpose  with  such  a  smack  that  it  could' 
have  been  heard  out  of  doors. 

mM^n  she  was  released  from  the  embrace  of  her  stalwart 
l.i.sbaml,  she  had  nearly  fainted,  but  Angeline  came  to  her 
support  and  assured  her  that  it  was  all  right  and  a  nec.-s 
sary  ,,art  of  the  ceremony  which  she  had  unfortunatelv 
neglected  to  explain  to  her.  It  took  some  time,  however 
to  reconcile  her  to  having  been  kissed  bv  a,  man  in  so  ,,ublic 
a  way,  and  Angeline  said  she  much  doubted  whether  he  had 
over  kissed  her  before  in  his  life. 

This  rumpus  Avas  enjoyed  by  the  mischievous  bridesmaid 
heyond  measure,  and  she  could  hardly  refrain  from  lau-h- 
mg  outright  and  boisterously  at  the  ludicrous  figure  whTch 
the  scene  presented.     Her  plans  had  worked  to  a  charm  and 


II 


3G 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


I 


t 


m 


I- 


just  a3  tho  iniTonious  girl  ha;l  hopod.  Mo.^t  of  the  company 
starcMl  u])on  the  scene  as  if  a  cataclvsm  was  actuallv  takiiv 
place,  tliou_:i;h  a  few  plainly  understood  and  enjoyed  it. 

After  this  funny  episode  liad  terminated  and  Anf,^clin(' 
had  o-ot  the  parties  back  to  their  places,  thoui>'li  it  was  dif- 
iicultto  make  the  timid  bride  understand  that  all  was  not 
yet  over,  1  stepped  up  to  the  married  couple  and  shook  their 
hands  and  warmly  congratulated  them  on  the  hapjiy  change 
which  liad  now  taken  i^laco  in  their  life  history,  though  I 
doubt  if  the  abashed  girl  understood  a  word  I  said;  but  the 
grooin  evidentl}^  enjoyed  the  situation  in  a  calm  and  conli- 
(lent  manner.  I  was  stuI)bornly  blind  and  deaf  to  all  the 
winks  and  nods  of  the  roguish  bridesmaid  to  go  further  and 
kiss  the  bride  myself.  I  felt  it  would  have  been  acrueltv  to 
have  further  embarrassod  the  timid  creature,  especially  as  I 
felt  sure  that  Angeline  would  have  assured  all  the  rest 
that  it  was  the  proper  thing  for  each  one  to  do  the  same 
thing. 

AVhen  I  had  turned  away  leaving  half  of  the  programme 
unexecuted,  the  bridesmaid  hastenetl  n]i  to  the  father  and 
mother  of  tlie  bride  and  by  mere  force  rushed  them  up  to 
the  Avedded  pair  to  kits  ar,d  congratulate  their  daughter, 
and  assuring  the  good  lady  that  it  would  be  a  clear  slight 
if  she  should  omit  that  mark  of  respect  for  her  son-in-law. 
ller  conlident  impetuosit}'  carried  her  point  and  the  young 
man  took  the  salute  of  his  new  mamma,  if  not  with  a  heartv 
relish,  at  least  with  a  benign  resignation.  The  father  kissed 
his  daughter  with  an  affectionate  tenderness  which  ])lainly 
besjjoke  the  depth  of  the  love  ho  felt  for  her,  and  she  received 
it  as  if  it  was  a  dailv  occurrence,  and  carried  a  l)lessini2:  with 
it.  All  efforts  to  get  the  rest  of  the  com})any  to  follow 
up  the  assault  ])roved  abortive,  and  soon  the  order  of  the 
gathering  was  Ijroken  up.  Then  we  did  our  best  to  ins])ire 
a  lively  mood  and  not  entirely  without  success.  I  talked 
with  all  of  the  ohlest  jieople  in  the  room  on  such  subjects 
as  I  thought  would  most  interest  them,  and  it  was  not  diffi- 
cult to  i^et  on  free  and  easv  terms  with  them  all. 


II 


ANOTHER  WEDDING  IN  RURAL  LIFE. 


37 


An,L,^-lir^o  Icnow  tl.om  nearly  all,  and  hor  kind  lio:irt  and 
social  disposition  wcro  well  aj)j)ioeiuted  wherever  she  went. 
Indeed,  she  had  become  a  sort  of  oracle  unions'  them,  fcilie 
Avas  a  favorite  amoni,'  all  classes. 

At  leng-th  some  plain  but  excellent  refreshments  wore  set 
before  us,  includiuo-  chickens  and  s(»me  colfee.  well  brewed, 
which  v,-ere  disposed  of  with  the  celeritv  peculiar  to  frontier 
life. 

]jy  ten  o'clock  all  were  o-ono  ])nt  ourselves.  Angeline 
said  she  must  stand  In'  her  friend,  the  bride,  till  the  last, 
and  she  did  so.  AYe  then  to(jk  our  leave  and  left  that  inno- 
cent and  amiable  family  to  their  (piiet  and  peaceful  life. 

AVe  had  scarcely  o;ot  out  of  hearino-  of  the  house  when 
my  companion  ])ecame  convulsed  with  laughter,  and  she 
made  the  i\)rest  ring-  with  her  merry  ])eals.  She  rehearsed 
over  and  over  the  scene  which  she  had,  in  fact,  created,  and 
pointed  out  the  ludicrous  ]>arts,  launhin*;-  to  the  echo  at  each. 

Auij^eline  was  fond  of  fun  and  fertile  in  resources  to  create 
it,  but  kind  of  heart  and  sympathetic.  If  her  practical 
jokes  caused  tem])oi'ary  ))ain  or  annoyance,  she  numaoed 
afterward  to  oblitei-ate  their  memoi-y  by  kind  and  ^-onerous 
acts,  in  which  she  delighted  even  more  than  in  her  merrv- 
inakin<>:. 

More  than  fifty-three  years  have  now  ela])sed  since  the 
events  wliicli  I  have  related  occui-red.  It  would  be  intei-est- 
ing  to  know  how  many  who  witnessed  them  are  still  left  to 
remember  them.  I^Iany  years  have  elapsed  since  the  amiable 
girl,  who  was  then  my  comi)anion,  ])assed  away,  mourned 
by  a  husband  and  a  large  circle  of  aj)pi'ecia.tive  relatives  and 
friends.  Jhit  where  are  the  ))arties  most  interested  in  what 
took  place  on  that,  to  them,  memorable  evening  ?  Have  thev 
been  spared  to  celebrate  their  golden  wedding,  surrounded 
by  descendants  as  virtuous  and  as  worthy  as  thev  were 
themselves?  I  have  never  seen  them  since,  and  have  now 
forgotten  their  names,  so  that  it  would  be  <lilticult  to  liunt 
them  up,  even  if  living;  so  that  I  may  not  hojjo  even  to 
meet  them  again;  and  yet  I  never  married  a  couple  who 
reallv  interested  me  more. 


VII. 


i 


CIRCUIT  SCENES. 

I. 

TlIK  FIRST  TERM  OF  CIRCUIT  COURT  IN  COOK  COUNTY — FIRST  TRIAL 

FOR    MURnEK    IX  COOK    COUNTY DEFENDS  A  THIEF    IN    WILL 

COUNTY FIRST  TRIAL  IN  KANE  COUNTY. 

In  tlie  first  p{;);,'r  '■h  series,  I  luive  stated  liow  it 

occurred  that  I  prose  .  >  i  ,x'fore  tiie  examinint,^  magistrate 
tiie  first  case  that  was  ever  entered  ii]K)ii  the  docicet  of  tlie 
Circuit  ('<mrt  of  Cook  ( ;ou  nt v,  n  n'l  mi  the  second  ]ia])cr  I  have 
related  liow  it  happened  thai  f  nae- retained  in  the  first  civil 
case,  wliich  was  marlced  No.  2,  which  ever  found  a  place; 
u])on  that  same  docket. 

The  first  term  of  tlie  Circuit  Court  of  this  county  was 
]>residetl  over  bv  Judg'e  Young,  and  was  held  on  the  Uth 
day  of  May,  f  S88.  V>y  the  act  of  February  10,  1881,  Cook 
county  Avas  placed  in  the  fifth  judicial  circuit,  and  by 
another  act  of  the  same  date,  the  times  for  holding  courts 
in  Cook  county  Avere  fixed  for  the  fourth  Monday  in  A])ril 
and  sec(md  Monday  in  September;  but  as  there  was  no  busi- 
ness to  be  transacted,  either  civil  or  criminal,  no  circuit 
courts  were  organized  in  this  county  in  that  year,  nor  until 
the  :>ray  term,  1834,  when,  as  before  stated,  the  first  court 
was  organized.  Although  my  two  cases  Avere  entered  u])on 
the  docket  previous  to  the  first  day  of  October,  1838,  Avhen 
the  court  should  haA'e  been  organized,  Judge  Young  did  not 
ai>pear,  and  so  no  court  Avas  then  held. 

I  am  awai-3  that  it  has  been  claimed  that  an  earlier  court 

(38) 


■ 
» 


CIRCUIT  SCENES. 


3U 


liad  boon  licld  in  Cook  county,  but  tliis  improssion,  no 
doubt,  luis  arison  from  the  fact  tliat  the  laws  lixod  tlio  timos 
for  holdinc,'  the  courts  in  ('ook  county  bofore  that  date;  but 
at  none  of  these  times  was  the  court  liehl,  for  tlio  simple  and 
sufficient  reason  that  there  was  no  business  for  it  to  do  until 
the  October  term,  1833,  when  Judge  Voung  did  notapi)ear 
to  hold  the  court. 

After  the  grand  jury  was  impaneled  at  this  May  term, 

and  had  been  charged  by  Judge  Ford,  who  w;;s  then  state's 

attorney  for  the  fifth  circuit,  they  retired.     It  was  at  that 

time  very  common  for  the  i)residing  judge  to  call  upou  the 

state's  attorney  to  cluirgo  a  grand   jury,  and  it  Avas  not 

uncommon  for  him  to  call  upon  some  member  of  the  bar  to 

perform  that  office.     Indeed,  it  was  sometimes  the  case  that 

a  lawyer  of    note,   when  first  attending  a  court,   gladly 

accepted  such  a  jiosition  as  a  means  of  introducing  himself  to 

a  new  community,  and  in  such  cases  the  charge  was  sure  to 

be  an  elaborate  one,   able   ahd   to  the  jioint.     I   do  rot 

remember  that  any  indictments  were  returned  by  that  grand 

jury,  except  against  the  young  man  whom  I  had  prosecuted 

for  stealing  the  Bellows  Falls  money,  and  as  he  failed  to 

appear   (as  it  was   jjrobably  intended    that    he   should  do 

Avhen   the   bail    was   taken),  I  am  very  confident  that  no 

criminal  trial  took  i)laee  at  that  term.  " 

The  first  ])etit  jury  ever  imi)anelod  in  that  c'ourt  was  to 
try  my  attachment  case,  of  Avliich  1  have  previously  spoken, 
and  in  which  I  Avas  beaten  by  Spring,  and  as  I  think  he 
was  right,  and  as  I  felt  all  the  while  a  self-reproach  for  the 
manner  in  which  it  came  to  my  hands,  I  felt  a  relief  rather 
than  chagrin  at  the  result,  although  I  made  the  verv  best 
fight  I  could,  and  ti'ied  hai'd  to  get  a  verdict  against  the 
weight  of  evidence.  Thus  it  fell  to  my  h)t  to  ccmduct  the 
first  jury  case  that  Avas  ever  tried  in  the  Circuit  Court  of 
Cook  County. 

At  the  same  term  I  had  a  habeas  corpus  case,  of  Avhich 
I  presume  the  State  courts  Avould,  at  this  time,  decline  to 
take  jurisdiction.     It  was  against  the  commandant  at  Fort 


ifi 


40 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


J)('afl)()i'n  for  the  rclcjisc  iiud  (lis('liiii'<;o  of  a  r.oldici'  iiiidcr 
liis  coimiiiiii'.l,  on  the  <^i'oiui(l  tluit  lie  was  under  ag-c  when 
lie  enlisted,  and  as  his  father  had  not  given  his  consL'Ut  as 
the  hiw  recjuired. 

I  found  ])recedents  in  a  Diirest  of  the  New  York  llejiorts 
Avhcre  tlie  State  courts  had  exercised  that  jui'isdiction.  and 
indeed  very  Httle  o])|)osition  to  my  pi«')C'eedin^  was  niad(> 
on  that  point,  aiul  .hid<j;'e  Youni;  sustained  his  jurisdiction. 
At  that  time  tlie  State  courts  chiimcd  jurit.ch'cticn  in  nearly 
all  ca-es  Avhere  it  was  not  vested  exclusively  in  the  Federal 
courts,  and  without  this  citizens  would  have  often  been 
sul)jected  to  great  inconvenience  and  expen.se  by  bein^  com- 
]»elled  to  resort  to  the  Federal  courts,  nenerally  at  a  great 
distance  away.  In  this  case  it  v.'ould  have  been  e(juivalent 
to  a  denial  of  justice  to  i-ompel  this  boy  to  go  to  Judge 
pope  at  S|)ringlielil  to  get  the  writ,  and  comj)el  him  to  go 
tJKM'e  for  the  ti'ial. 

I'pon  the  trial  I  ])i'ovod  by  a  witness  Avho  knew  him 
from  childhood  that  he  was  under  the  age  of  eighteen  years, 
which  was  also  clearly  manifest  i'vom  his  a))j)earance,  but  1 
did  not  prove  conclusively  that  his  father  did  not  consent 
to  his  enlistment,  nor  did  the  commandant  })!'oduce  a  partich? 
of  evidence  showing  such  consent  had  been  given,  and  upon 
this  condition  of  the  testimony  the  case  was  submitted  to 
the  court. 

I  argued  it  to  a  most  ridiculous  length  before  the  court, 
and,  no  d()ul)t,  said  all  that  could  have  been  said,  and  a  good 
deal  more  than  could  be  v.'ell  said,  and  the  court  listened 
to  me  for  seven  hours  without  the  least  evidence  of  im- 
])atienco,  and  then  decided  the  case  against  me.  The  only 
j)oint  which  I  now  remcMuber,  or  which  was  probably 
worth  remembering  in  my  argument,  was,  that  as  I  ha:l 
jn'oved  the  infancy  of  my  client,  it  w^as  for  the  Government 
to  show,  as  a  condition  precedent  to  a  legal  enlistment,  that 
his  father  or  guardian  had  given  his  consent  to  the  enlist- 
ment, which  had  not  been  done.  While,  on  the  other  side, 
it  was  contended  that  it  must  bo  [)resumed  that  the  enlist- 


CIRCUIT  SCENES. 


41 


in^'  ojllcer  had  done  his  (hity,  and  h:id  i',^or»ivo,l  tho  ])ar('ntiil 
assent  before  he  would  accept  theeidistnient.  Ford  ai'gucd 
the  cas(^  for  the  United  States. 

The  court  adjournetl  for  dinner  dr.riii'j-  the  argument,  and 
uheii  1  saw  tile  jud;^e  ^'oin^*  oil"  witli  tlie  commandant  to 
tlie  fort  for  dinner,  I  confess  I  felt  a  little  uneasy  that  some 
improper  inHuence  mii;ht  I);>e.\ert(Mi  upon  the  judicial  mind. 
Jiidiculous  as  this  unworthy  thought  was,  I  may  lind  a  very 
lamo  excuse  for  it  in  the  hurninu'  solicitude  which  a  youii!^' 
lawyer  feels  in  his  ciise  at  th(>  very  commenci'ment  of  his 
cai'cer,  for  no  purer  or  more  u|)ri«;ht  man  ever  sat  upon  the 
judicial  hencli  than  Jud^e  Voun^-. 

In  the  month  of  .Tune, ISIU.  an  liish  lahcrcr  ina  dru!d<eji 
lit  went  home  and  lindini;  somethin;^'  wron<i'  in  his  <lomestic 
I'clations.  perha[)s  because  his  suppiM'  was  not  to  suit  him,  he 
manifested  iiis  dissatisfaction  by  <i'ivin<^'  his  wife  a  beatinu;', 
and.  not  bein<j:  in  acoiidition  to  discreetlv  measure  the  force 
be  employed,  she  died  from  its  etl'ects.  An  autopsy  Wiis 
lu'ld  upon  her  remains,  conducted  by  Dr.  Ten>j»le,  assisted 
by  Dr.  Kind)erley,  Dr.  Iliu-mon,  and  several  other  local  ]»hy- 
sicians,  and  they  reported  that  death  had  ensued  fi'om  the 
blows  iuMicted  by  her  husband,  and  the  coroner's  jury  held 
him  to  answer  for  murder;  this  was  the  lirst  autopsy  ever 
held  in  Cook  county,  so  far  as  I  could  h'arn.  I  was  a]»plied 
to,  to  defend  him.  I  was  convinced  that  the  (jtio  imu/to  was 
wanting-  to  constitute  the  crime  of  murder,  and  that  the  true 
line  of  defense  was  to  nud<e  the  homicide  a.  sim])le  man- 
slaughter, and  addressed  myself  to  the  i)reparation  of  the 
case  upon  that  line. 

Sickness  prevented  mo  from  attending  the  October  tei'in 
of  the  court,  which  Avas  held  on  the  lirst  day  of  Dctober, 
1884-,  Judge  Young  presiding,  so  that  the  entire  defense  IV'll 
upon  my  partner,  Mr.  Collins,  who  adopted  the  same  line  of 
<lefense  which  I  had  fixed  u])on  and  carried  it  further  than 
1  had  hoped  to.  The  indictment  was  for  murder,  and  Air. 
Ford,  the  state's  attorney,  being  convinced  that  he  could  not 
sustain  that  charge,  asked  for  a  conviction  for  manslaughter 


42 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


and  for  a  severe  |)iinislmient.  ^Iv.  Collins  took  tlio  bold 
^M'oiind  that  lie  could  not  bo  convicted  of  manslaii'^liter 
under  that  indictment,  but  tluit  the  jury  must  convict  him 
of  murder  orac(|uit  him  altogether.  This,  at  first  si<i:ht, 
mi<;ht  seem  a  little  dangerous,  for  it  could  not  be  (|uestioned 
that  a  brutal  homicide  had  l>eon  committed  without  the  least 
justification,  and  there  was  dani^or  that  they  mi<^ht  convict 
him  of  murder  rather  t'.ian  to  let  him  esc:ii)ealto,i,a»ther;  but 
this  was  not  so  dangerous  a  course  as  would  at  first  appear, 
for  liad  they  done  so,  there  was  no  doubt  that  the  coui't 
would  have  granted  a  new  trial,  and  thus  have  saved  him 
from  ca])ital  jnmishment. 

Collins  urged  his  |)osition  with  such  ])crsistency  and 
ap])arent  confidence  that  he  persuaded  Judge  Young  to  give 
the  instruction  which  ho  asked,  and  thus  secured  the  coi'i- 
])lete  ac(piittal  of  our  client. 

Now,  Judge  Young  was  really  a  very  good  lavryer,  but 
he  manifestly  had  had  no  case  which  had  recpiired  him  to 
investigate  that  particular  ])oint  of  law  which  authorizes 
the  conviction  for  a  lower  gnide  of  offense,  of  the  same 
class,  under  an  indictment  for  a  higher  grade,  as,  for  instance, 
manslaughter  for  murder,  an  assault  with  a  deadly  weapon 
under  an  indictment  for  an  assault  vrith  intent  to  commit 
murder,  and  the  like. 

Mr.  Collins'  arguments  Avere  of  such  force  as  to  create  a 
doubt  in  the  mind  of  the  judge  on  this  ]K)int  of  law,  and  he 
gave  the  prisoner  the  benefit  of  the  doubt.  Such  was  the 
result  of  the  first  trial  for  murder  in  C(iok  county. 

It  also  hap])ened  that  I  tried  the  first  jury  case  ever  tried 
in  Will  county. 

1  had  been  retained  to  defend  a  man  for  stealing  a  red 
ovei'coat  from  Tuttle  Xing,  v/lio  at  that  time  kept  a  cloth- 
ing store  in  Chicago. 

A  violent  prejudice  seemed  to  exist  in  Chicago  against 
thieves  and  counterfeiters,  who  had  become  unpleasantly 
numerous  Avithin  the  last  few  years,  so  that  it  seemed  to  me, 
as  I  often  exi)ressed  the  opinion,  that  the  juries  here  were 


\ 


CIRCUIT  SCENES. 


43 


' 


s()|)n'ju<lico<I  that  to  road  to  them  an  indictmont  was  (Miuuiih 
to  insure  conviction  of  the  i)risoner;  that  they  scenied  to 
re<^ar(l  an  indictnuMit  which  had  boon  found  l>y  a  <;riind 
jury  as  very  truth,  as  if  it  ha<l  hoen  found  in  (uks  <»f  the 
gospels.  ImU'od,  not  only  the  juries,  but  the  courts  seemed 
to  have  a  setthnl  prejudice  a/^'ainst  persons  indicted  for  that 
chiss  of  crimes,  and  the  only  chance  to  ^et  them  olf  was 
ui)on  some  technical  ])oint,  as  to  (piash  tlie  indictment  or  to 
find  a  variance  l)etweontije  counterfeited  instrument  olfered 
in  eviih'uce,  and  the  copy  set  forth  in  the  indictnu'Ut,  atid 
in(U'ed  tiiis  diu  not  always  avail,  though  the  points  were 
well  taken. 

This  is  illustrated  in  the  case  of  Qui'iley  v.  The  People. 
:»rd  Scam.  There  (Jui<,dey  had  boon  indicted  for  passing,-  a 
counterfeit  bank  bill,  which  i)urported  to  be  set  out  in  hni- 
rcflxt  in  the  indictment.  There  it  was  set  out  to  be  payable 
to  I».  Ayrn,  or  bearer.  On  the  trial  the  ctmnterfeit  bill 
ofu'red  in  evidence  was  payable  to  15.  Aymor,  or  bt'arei",  and 
I  objected  to  the  admission  of  this  ImU  in  evidence  because 
of  this  variance.  Most  undoubtediv  this  objection  was  well 
taken,  for  the  law  is  well  settled  that  the  least  variance 
between  the  copy  set  out  in  the  indictment  is  fatal  to  the 
admission  of  the  instrument  in  evidence.  But  Judi^e  Pear- 
son evidently  thou*^ht  that  my  man  was  ^uilt}'  anyhow,  and 
that  he  would  give  him  a  taste  of  the  penitentiary,  at  least 
until  his  judgment  could  be  reversed  by  the  Supreme  Court, 
so  he  admitted  the  instrument  in  proof.  ]\[y  man  was  con- 
victed and  sent  to  the  ])enitentiary.  The  error  was  so  ])al- 
pable  that  I  determined  to  take  the  case  up  and  have  it 
reversed,  but  Quigley  said  I  need  not  i)ut  myself  to  that 
trouble,  for  he  could  get  out  of  the  penitentiary^  by  his  own 
efforts  quicker  than  I  could  get  him  out  by  reversing  the 
judgment  in  the  Supreme  Court;  but  I  begged  him  to  stay 
there  until  I  could  take  the  matter  up,  and  get  i'  i  eversed, 
which  would  only  require  a  few  months,  and  Avliich  he  re- 
luctantly  promised  to  do.  In  ray  brief  in  the  Sui)rem(^ 
Court  1  made  two  or  three  unimportant  points,  which  1  did 


11 


EAIJLY  BKNCII  AND  BAR  OF  ILLINOIS. 


not  oxpcct  to  sustain,  lit-.^idc  tlic  vitiil  one  <»1'  ViU'iaiicc.  To 
iiiiikc  this  point  sure  1  had  in'cn  vt'iv  carrfnl  to  sto  that  the 
copy  of  tho  iiulictnuMit  as  set  out  in  the  record  was  made  so 
exact  as  to  leave  no  (piestion  on  that  i)oint,  and  niaiiau'ed  to 
have  the  oi-i^inal  hill  oll'ered  in  evi<lence  ])asted  into  the 
I'ecoi'd  in  its  proper  place,  so  that  there  could  he  no  mistake 
aliout  that,  in  ar<;uin,n'  the  case  I  committed  the  lata! 
mistake  of  makin;i;  several  points  which  I  did  n(»t  ex|M'ct  to 
sustain.  I>ut  dealt  mostly  with  the  evith'nc;>,  which  1  did 
exp'.'ct  to  sustain,  for  1  know  tho  law  was  witli  mo  on  that 
point. 

In  due  time  T  re;';Mveil  a  noiic^  from  tlie  cl(<riC  of  the 
court  that  the  judirment  in  (^)ui,uley'scasi>  had  been  aHirm»>d. 
which  set  me  ahnost  wild  with  astonishment,  and  when  1  re- 
ceived a  copy  of  the  opinion  written  by  Jud^e  Smith  my 
astojiishment  wj'.s  in  no  Avhit  dimini.^hed  I)y  ohservin*;' that 
he  had  taken  up  and  discussed  and  decided  theuninijiortant 
))oints,  which  I  had  thrown  in  as  a  sovt  of  make-wei<;ht, 
against  me.  and  so  a.llirmed  the  juduiiuMit  witliout  taking 
the  least  notice  of  the  (luestittu  of  variance  more  than  as  if 
it  had  not  been  in  the  record  at  all. 

To  say  tho  least,  1  thought  this  a  very  cai'eless  way  of  ex- 
amining- and  disiMtsing  of  a  record,  or  disposino-  of  ji  })oint 
uhich  could  not  be  ^ot  over,  if  it  had  boon  noticed. 

I  was  obli<^-ed  to  inform  (}ui<iley  of  tho  decision,  and  that 
1  could  do  no  m»»iv  for  him. 

In  a  very  short  time  afterward  I  learned  that  a  ])risoner 
named  (^)ui,?^lev  had  escaped  from  th(>  penitentiary,  and  had 
taken  live  other  prisoners  with  him,  and  thoy  Avero  never 
heard  of  afterv.ard  from  the  prison  authorities;  but  I  did 
learn  fi-om  another  source,  somehow,  that  "when  he  had  ^ot 
his  friends  out  with,  h'ai  lie  dare  not  leave  them  to  them- 
selves, Init  took  charge  of  them  till  ho  landed  them  in  the 
middle  of  Kentucky,  where  he  left  them.  They  traveled 
only  niu'hts,  sustaining  themselves  on  milk  from  the  farmers' 
cows  on  the  way,  and  hiding  iii  the  bottoms  during  the  day- 
time. 


tlKlUlT  hCKNKS. 


45 


X«i\v.  it  si'ciMs  (o  m>  I  wiis  I'i^lit  iti  iiiy  conclusion  that 
there  was  a  st!'(>n<,'"  |>r<'jii<licc  cxistini'"  I'lLjaiiist  that  (lass  nl' 
citi/ciis,  not  only  on  the  | tart  of  jni'(»rs  in  Chicau'o.  I)nt  on 
the  pai't  of  the  coiii-ts  np  to  th(!  hi;^liest  in  the  Stale,  hy 
i*e:ison  of  whii-h  they  couM  not  Icel  assnrcd  that  tliey  would 
have  the  law  fairly  administered  to  them,  and  when  that  is 
the  (Vise  th(>i'e  ninst  alwavs  li(>  yivat  liahilitv  that  innocent 
persons  will  ho  c(tnvicted  of  crime. 

Hence  it  was  that  I  proiMU'cd  a  chan^jfo  of  vcmiuo  to  Will 
conntv,  in  Fox's  c:is>.  and  to  try  hin),  t!i(^  first  jury  ever 
called  m  tin;  Circuit  Court  of  AVill  County  was  impaneled. 

Tliei'e  was  present  ij,  c'^nrt  Cyrns  Walker,  a  very  distin- 
ijnished  hiwyer  fi-om  Schuyler  county,  who  had  come  np 
to  make  aci|uaintanc;'s  airl  att  'iid  convt  in  the  northern 
part  of  tlm  State.  I  invit(Ml  him  to  take  a  seat  with  me.  and 
assist  in  tho  trial  of  Fox's  caiio,  and  thus  introduce  himself 
thei'e.     lie  did  so.  and  took  a  leading  ])ai't  in  the  ti'ial. 

1  told  him  we  had  a  j)r(>tty  had  case,  and  so  the  eviilence 
on  the  part  of  the  people  proved  it  to  be.  ."^Ii'.  Kini;'  identi- 
fied tho  rod  overcoat,  which  had  l>oen  stolon, and  alsoa  lar^c 
black  overcoat,  v.diicli  had  been  found  on  him.  The  state's 
atttn'ney  ]>r()ved  that  when  tho  prisoner  was  arrested  on  the 
street  \w  had  on  tho  red  overcoat  an<l  over  it  the  black  one, 
which  did  not  (piito  cover  the  red  coat  at  the  ends  of  tln^ 
sleeves,  and  by  this  carelossnc^ss  on  his  i)art  he  was  detected, 
and  at  t!io  time  ho  had  oxi)Iained  he  had  bou^^ht  the  over- 
coat of  someb(:<ly  else;  in  sliort,  this  was  the  State's  case. 
To  moot  this  wo  produced  witnesses  who  i)roved  that  it  was 
frecpi'.nitly  so  cold  in  Cliicago  in  .Inly  (the  time  when  tho 
arrest  was  made),  that  it  was  necessaj-y  to  wear  two  ovei'- 
coats  to  1)0  comfortable,  and  this  was  tho  oidy  defens(}  wo 
could  ])rosont. 

AVo  ar^-uod  tho  case  to  the  jury  at  considoi'able  Icna'th, 
and  AValkor  ospocially  declaimed  upon  tho  climate  of  Chicago, 
and  commented  upon  the  prudence  of  tho  prisoner  in  having 
bou^'ht  two  overcoats  to  ])rotoct  himself,  and  warmly  com- 
mended his  exami)lo,  which  should  be  strictly  imitate<l  by 
every  one  who  had  a  regard  for  his  health  or  comfort. 


4G 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


Xow,  this  {irf>^iiment  to  a  jiirv  of  Chicagoaiis  woul<l  havo 
been  sure  to  have  sent  our  man  to  the  ])enitentiary  at  once 
for  a  long  term  of  years,  but  a  country  jury,  who  felt  no 
ol>li<;ation  in  defendinjLi'  the  reputation  of  the  ])hK'e  as  a 
<lesiral»k^  summer  resort,  some  of  whom  liad  ])ei'hiips  ex- 
l)erienc'('(l  the  cliillin*^  ellects  of  a  f^ale  sweepini:^  (h)\vu  from 
the  north,  acce])te(l  the  expUination  as  satisfactory,  ami  so 
acduitted  the  prisoner. 

?»J^o\\',  the  only  thing  which  my  client  had  to  pay  me  for 
mv  fee  was  a  verv  line  two-year  old  colt,  Avhich  was  at 
Drown's  country  tavern,  which  Avas  about  half  way  betvrcen 
.loliet  and  Chicago,  and,  as  we  all  returned  toChicr.goin  the 
stage,  when  we  stopped  for  dinner  at  IJrown's,  Fox  turned 
over  the  colt  to  me.  I  left  it  there  for  a  few  days  until  I 
could  send  for  it,  and  wlu  n  I  did  send  for  it  a  week  later, 
Mr.  Brown  said  that  the  thief  had  come  back  and  claimed 
the  colt,  and  was  about  to  take  it  awav,  stating  that  he  had 
settled  n.y  fee  in  some  other  way;  but  ^Ir.  Jjrown  refused 
to  let  him  take  it, and  so  I  got  the  colt  at  last. 

Wlien  I  heard  this,  I  confess  that  my  confidence  in  his 
statement  that  he  had  ])urchaHed  the  coat  to  keej)  him  com- 
fortal)le  in  Chicago  in  July,  wjis  rudely  shaken. 

It  happened  also  that  I  tried  the  case  which  was  submit- 
ted to  the  first  petit  jury  ever  impaneled  in  Kane  county. 
It  was  Wilson  v.  Wilson. 

One  day  while  at  work  in  my  office  a  man  and  hi;?  Avife, 
Avay-worii  and  dusty,  entered,  and  sought  my  professional 
services  tor  the  redress  of  a  grievance  Avhich  they  had  suf- 
fered. J'oth  were  rather  undersized,  under  thirtv  rears  of 
age,  very  poorly  clad,  and  were  what  may  be  justly  termed 
simj)le  peo|)le,  Avithout  force  of  Avill  or  energy.  Their  story 
was  that  they  had  come  frtun  ButFalo  on  a  schooner,  which 
a  Aveek  before  had  been  Avrecked  alxmt  two  miles  south  of 
this  citv:  thev  and  the  crew  had  been  all  landed  safelv, 
afver  a  hard  night's  experience  on  the  Avreck,  but  they  had 
lost  evervtliing  except  Avliat  Avas  on  their  ]>ersons.  The 
woman  was  evidently  eneieute,  and  pretty  far  advanced. 


CIRCUIT  SCENES. 


47 


Aftor  a  (lay  or  two's  stay  in  the  town,  thcv  hf^d  started  on 
loot  for  the  country,  and  wlion  in  tlie  imurio  about  two 
nnles  boyond  Lau-hton's  Crossin-  wliero  Kiverside  now  is 
they  had  nii^t  a  (h-ove   of   Jior.ses  from   Scliuvlor    co'intv 
m  this  State,  belon-jn^r  to  one  AVilson,  who  was  in  ch-uM-.> 
witn  soveral  men  Avith   him.     AVilson  pretemlod  to  b "  a 
shfnfF,  and  to  have  a  warrant  f(,r  their  arrest,  ami  did  arrest 
them  and  detained  them  about  half  an  hour  in  the  jn-airie 
but  finally  left  them,  nearly  fri-htened  to  death. 

After  they  had  somewjiat  recovered  from  their  fright 
they  turned  baek,  and  stopped  at  Launhton'.  house  at'the 
lord,  and  tohl  their  pitiable  storv, 

Laughton  had  been  a  client  of  mine,  and  thev  were  siren 
uously  advised  to  come  back  to  Chica-oand  state  their  case 
to  me,  with  the  C(mlident  assurance  that  I  would  see  tint 
.lustice  was  done  for  the  outra-e.  This  thev  did.  and  hence 
thr-  appearance  in  my  ofHce  as  above  stated.  I  inimedi- 
ateJy  took  means  in  a  cpiiet  way  to  obtain  the  name  of  the 
owner  of  the  horses,  and  leader  of  the  -an-  who  was  vet  in 
town,  and  before  ni-ht  ho  was  umler  bail  to  appear  at  the 
next  term  of  the  Circuit  Court  to  answer  to  an  action  of 
trespass  and  false  impris.mment.  My  client's  names  were 
n  ils<m,  and  that  was  the  name  of  the  defendant. 

Mr.  yeamni(,n  was  retained  for  the  defense.     He  succeeded 

in  i|:ettino-the  case  continued  for  one  or  two  terms,  and  then 

took  a  change  of  venue  to  Kane  county,  on  an  allhlavit 

showing  that  the  pooi)lc  of  Cook  countv  were  preju<liced 

against  his  client  so  that  he  co-aid  not  have  a  fair  trial  here 

:so  doubt  there  was  considerable  ])rejudice  against  him 

in    t.ie  town   of  Chicago,  for  I  had   taken   an   interest    in 

my  clients  more  than  professional,  and  had  taken  pains  to 

enable  them  to  get  a  supp,>rt  which  thev  so  much  ne.MJed 

Dr.  Urainerd  and  I  had  been  students  in  liomo  N   V    -it 
the  same  time,  and  one  day  in  the  fall  of  ]s;>,:,  he  ro.h.  unto 
my  olKce  in  Cliicago  on  an  Imlian  ,)ony,  and  stated  that  he 
had  come  here  for  the  purpose  of  ]>racticing  his  profession 
lie  was  about  as  mii)ecunious  as  I  had  been  on  my  first 


w 


48 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


arrival  lioro,  and  I  at  once  offei'cd  liini  doslv-room  in  my 
ottice,  and  assured  liiin  that  I  would  do  all  I  could  to  intio- 
duco  him  where  it  would  do  the  most  good,  lie  Avent  out 
and  sold  his  ])ony,  put  upa  sign  al(^)n_gsi(l(;  of  mine,  and  this 
was  the  commencement  of  the  career  of  one  of  the  most 
distinu'uished  sur/^eons  and  ])hysicians  wiio  have  cast  lustre 
on  the  medical  profession  of  Chicago,  and  the  founder  of 
liush  Medical  College. 

lie  Avas  in  the  ottice  at  the  time  "VVilson  first  called  u])on 
me  for  advice,  and  as  it  Avas  evident  that  a  doctor  Avould 
soon  ])e  Avanted  as  Avell  as  a  laAvyer,  I  introduced  him  to 
them,  and  he  took  an  iitimediate  interest  in  the  case.  Indeed, 
it  Vv'as  an  opportunity  not  to  l)e  neglected.  I  had  already 
introduced  the  doctor  to  ]\Irs.  John  II.  Kinzie,  and  several 
other  of  the  leading  families  on  the  North  Side,  and  he  in- 
terested himself  among  t!ie  ladies,  Avhoso  accjuaintance  lie 
had  made,  telling  the  sad  story  of  tlie  poor  castaways,  a!id 
it  Avas  not  hmg  Ijeforc  ho  had  his  patient  comfortably  housed 
in  a  log  cal>in,  and  induced  a  number  of  lady  acquaintancis 
to  call  upon  her  to  see  Avhat  they  could  do  for  her  comfort, 
and  when  the  time  arrived  she  had  been  Avell  provided  with 
a  bed,  and  an  abundance  of  comfortable  clothing,  and  many 
of  the  ladies  seemed  to  vie  Avith  each  other  in  calling,  and 
bringing  provisions  and  delicacies,  to  an  extent  Avhich  Avealth 
could  hardly  IniA'e  i>urchaso(l  in  Chicago  at  that  time.  At  the 
])roper  time  Dr.  IJrainerd  attended  to  the  case  with  a  skill  and 
assiduity  Avhich  at  once  established  iiimina  res]iectable  ]irae- 
tice.  j'.nd  noone  knew  better  than  lie  how  to  cultivate  it  in  a 
])roper  and  professional  way.  It  may  be  well  ajipreciated  that 
in  the  little  town  of  Ciiicago.  as  it  was,  sav  tit'tv-llA'e  vears  aiio. 
a  ca^e  in  Avhicli  so  many  ladies  had  felt  an  interest  would 
be  ])retty  well  understood  l)y  a  large  proportion  of  the  peo- 
])le,  and  if  the  jury  were  to  be  called  from  the  village  alone, 
I  think  it  Avouhl  haA'c  been  diMlcult  to  have  got  one  cleai' 
of  prejudice,  and  indeed,  Scammon  might  luive  been  Aveil 
justiHed  in  taking  the  change  of  venue. 

Jolm  Pearson  had  been  elected  judge  of  this  circuit  at  iho 
seasicQ  of  th'j  Legislature  (1830-37),  and  he  opened  his  iirst 


. 


CIRCUIT  SCENES. 


41) 


I 


1 


court  at  Gonova,  on  June  10,  ls;}7.  and  tlie  first  caso  on  tlio 
<locket  was  that  of  Wilson  v.  Wilson, cliani^e  of  venue  fi'oui 
Cook  county.  I  had  found  a  witness,  who  from  a  tlistanceof 
half  a  mile  or  more  had  seen  the  ])laintiffs  walkin*;-  oji  the 
road  in  the  ])rairie,  when  they  were  met  by  the  di't'cmlant 
with  a  drove  of  horses;  tliat  the  defendant  with  several 
other  men  sto])i)ed  and  <lismounted  from  their  horses  and 
seemed  to  surround  the  plaintitfs,  and  that  after  hall'  an 
hour  had  elapseil  they  remounted  their  horses,  «i^athered  u|> 
the  drove,  ai'd  proceeded  with  them  t(jwai<l  Chicago,  an<l 
that  after  tiie  expiration  of  another  half  hour  the  plaint- 
itfs  had  returned  alon<j^  the  road  to  Lau^^hton's  house,  wh«Mi 
they  apjx'ared  to  ])e  in  a  much  demoralized  and  fi-iuhtencd 
condition.  At  that  time  the  ])arties  to  a  suit,  or  those  who 
had  even  a  remote  interest  in  the  result,  coidd  not  Ik' 
allowed,  or  forced  to  testify,  so  that  what  actually  took 
])lace  at  the  time  of  the  stoppa;^'e  in  the  ])rairie  could  not 
he  explained  to  the  jury,  but  I  luul  an  un<loubted  liuht  to 
draw  the  most  unfavorable  inferences  af;ainst  the  defend- 
ants, which  could  be  justilled  from  the  facts  ju'oved,  and  1 
made  the  most  of  this  ri^ht.  It  is  easy  to  ima<rine  the  pic- 
ture which  I  drew  of  the  outraii^e  and  sulferinu-  of  these 
j)oor  people,  out  there  in  the  l:>nely  prairie,  at  the  hands  of 
•these  beastly  and  lecherous  rulKans,  who  were  as  destitute 
of  sympathy  and  com}).ission  as  they  were  of  decency  and 
morality. 

I  also  took  out  with  me  Drs.  TJrainerd  and  Ooi*  Ihue,  and 
pvoveil  by  them  the  d:in'j;'er  to  the  woman  incurrtMl  l)y  such 
outra<2;es  as  that  cojuplaini'd  of. 

Xo  witnesses  wer*^  introduced  for  tiu»  di^fendants.  My 
intention  was  to  make  a  short  oj)enin<^'  of  the  case  and  to 
make  my  ^reat  effort  in  my  closin<^  speech,  but  as  I  arose  \ 
east  mv  eve  toward  Mr.  Scammon  and  saw  at  once  tiiat  he 
had  made  up  his  mind  that  if  1  only  made  a  formal  opeiiinn' 
he  intended  to  submit  the  case  without  further  ar;:ument,  so 
I  instantly  chant^od  my  ])urpose,  and  went  at  it  in  earnest, 
going  over  the  whole  ground,  and  insisteil  u[)on  a  verdict 


50 


EARLY  BENCH  AND  BAR  OF  ILLINOIS, 


wliich  would  not  only  compensate  tlieni  for  the  injury  (lone 
tliein  as  tar  as  that  could  be  done  with  money,  but  wouUl 
also  teach  other  evil-doers  to  avoid  this  part  of  the  State  at 
least,  when  they  proposed  to  commit  such  crimes. 

This  forced  Scamnion  to  address  the  jury  in  the  interest 
of  his  clients.  He  couhl  make  but  little  headway  in  his 
attempt  to  maintain  that  I  had  not  ])roved  a  technical  arrest 
and  trespass,  but  loudly  and  earnestly  insisted  that  the 
inferences  which  I  drew  as  to  the  extent  of  the  outrau^ecotn- 
mittcd  were  entirely  gratuitous  and  not  true  in  fact.  He 
hardly  asked  for  an  ac(]uittal,  but  his  great  effort  was  for  a 
nouiiual,  or  at  least,  a  siuall  verdict. 

The  jury  was  out  but  a  little  while,  when  they  returned 
Avitha  verdict  of  "gnilty,''  and  assessing  the  plaintiff's  (lam- 
ages  at  $4-,ir»0.r>0,  Avhich  amount  at  that  tiine  was  considered 
sim})ly  enormous,  at  least  in  this  part  of  the  State,  for  a  tres- 
pass to  the  person. 

Scanr.ion  made  a  motion  for  a  new  trial,  which  was 
promptly  overruled,  and  judgment  entered  for  that  amount. 

So  it  was  that  I  tried  the  iirst  jury  cases  ever  tried  in  the 
Counties  of  Cook,  AVill  and  Kane. 

II. 

PRACTICE    IS    EARLY    DAYS — FOLLOWING    THE    CIRCUIT — ITIXKK- 

AXCY INCIUKNTS. 


In  the  olden  time  in  Illinois,  say  prior  to  1S50,  the  circuit 
system  of  practice  was  in  vogue  in  legal  life,  and  ])resente(l 
inci<lents  and  peculiarities  which  are  entirely  wanting  since 
the  country  has  become  more  i)opulous.  With  the  growth 
of  the  cities  and  towns,  resident  lawyers  of  ability  and  learn- 
ing are  found  in  every  county  seat  at  least,  who  rocpiire  no 
assistance  in  the  conduct  of  the  most  imi)ortant  cases.  It 
was  not  so  in  the  early  days.  Then  the  few  local  lawyers 
Avho  had  settled  in  the  county  towns  were  ffeufn-allv  new 
comers,  without  experience  and  self-confidence,  and  both 
they  and  their  clients  depended  largel}^  on  the  assistance 


f 


CIRCUIT  SCENES. 


i)\ 


I 


from  abroad,  os]iooially  at  tlio  ti'ials  of  oausv-^s.  This  state 
of  things  lUH'ossitatcil  a  ehiss  of  itinerant  hiwyors  whosi; 
ability  and  oxporioneo  liad  socurod  to  thorn  reputations  co- 
oxtonsive  with  th«Mr  jndicial  circuits,  and,  in  many  cases, 
tlironn'hout  the  State.  Tlieso  wore  few  at  first,  but  with  the 
increase  of  population  and  business  their  nund)ers  increas(>d, 
while  their  theaters  of  action  b(H*anie  more  circumscribed. 

At  lirst  they,  with  tin;  judiie,  traveled  on  horseback  in  a 
cavalcade  across  the  prairies  from  one  county  seat  to  anothei', 
overstretches  froni  lifty  to  one  hundred  miles,  swimmini^ 
the  streams  Avhen  necessary.  At  night  they  would  put  up 
at  Jog  cabins  in  tlie  bor<lers  of  the  groves,  where  they  fi'e- 
((uentiy  ma<le  a  jolly  night  of  it.  This  was  a  perfect  school 
for  story  telling,  in  which  .Mr.  Lincf)ln  became  so  proficient. 
It  was,  indeed,  a  jolly  life  on  tlio  boidei',  the  tendency  of 
\.  iiich  was  to  soften  the  as])ei"ities  and  to  (juicken  the  sensi- 
hility  of  human  nature.  Here  was  unselfishness  cultivated, 
and  kindliness  promoted,  as  in  no  otiior  school  of  which  I 
iiave  knowledge. 

This  circuit  practice  rerpiired  a  quickness  of  thought  and 
a  rapidity  of  action  nowhere  else  re(piisite  in  ])rofessioi!;d 
practice.  The  lawyer  Avould.  perhaps,  scarcely  alight  from 
his  horse  when  ho  would  be  surrounded  by  two  or  threi; 
clients  requiring  his  services.  Each  would  state  his  case  in 
turn.  One  wouUl  require  a  bill  in  chancei-y  to  be  drawn. 
Another  an  answer  to  be  pre])ar<Ml.  A  third  a  string  of 
si)ecial  ])lcas,  and  for  a  fourth  a  demurrer  must  be  interposed, 
and  so  on, and  all  of  this  must  ba  doneb;?fore  the  openingof 
the  court  the  next  morning.  Then  ])erhaiis  he  would  i)o 
called  on  to  assist  in  or  to  conchict  a  trial  of  which  ho  had 
never  heard  before,  just  as  tiic  jury  was  about  to  be  called, 
when  ho  must  learn  his  case  as  the  trial  progressed.  This 
requires  one  to  think  quickly  and  to  make  no  mistakes,  and 
to  act  promptly  to  take  advantage  of  the  mistakes  of  the 
adversary,  who  was  ]>robably  similarly  situated.  It  is  sur- 
prising how  rapidly  such  practice  qualifies  one  to  meet  such 


emergencies. 


52 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


Tlioso  early  sottlei's  liad  not  imit-li  money  to  ]m\\  lawyers' 
fees,  l)Ut  tliev  would  <^'enerally  ])ay  soniethin<^'  and  give 
notes  for  the  balance,  or,  ])ei'lia|)s,  turn  out  a  horse  or  a  eolt 
in  jtaynient.  These  would  ])rol)ably  serve  to  ])ay  tavern 
hills,  and  a  horse  or  two  might  he  led  home  or  sold  on  the 
way.  Fee  notes  formed  a  sort  of  currency  at  a  county  seat 
aliout  court  time  and  could  freqnently  besold  to  a  merchant 
or  the  landlord  at  a  mod(?rate  discount.  A  town  lot  or  an 
<'ighty  of  land  would  som«>times  he  taken  for  a  fee,  espe- 
cially when  it  had  been  a  })art  of  the  subject-matter  of  the 
litigation. 

The  southern  ])art  of  tliis  State  was  first  settled,  and  so 
legal  tribunals  were  there  lii'st  established.  The  lirst  set- 
tlers were  mostly  immigrants  from  Kentucky  and  Tennes- 
see, with  some  from  A'irginia  and  the  Carolinas,  though 
many  were  from  the  Eastern  States.  The  lawyers  from  the 
Southern  States  were  in  the  majority,  while  the  Eastern 
States  furnished  many  able  lawyers  as  v.-ell.  Among  the 
former  I  may  mention  S.  T.  Logan,  Judge  Young,  Arche 
AVilliams.  ().  II.  IJrowning.  Thonuis  Ford,  J.  T.  Stewart,  J. 
J.  Harding,  Col.  Snyder,  and  many  others;  while  among 
those  from  the  East  I  may  name  Lockwood,  Breese,  Baker, 
]\Iills,  Kane  and  others.  All  of  these  men  would  have 
ranked  high  at  any  bar,  and  were  thoroughly  I'cad  in  the  fun- 
tlamental  j)rinci])les  of  the  hnv.  Later  came  Lincoln,  Davis, 
Treat.  Dc^uglas  and  Trumbull,  all  able  men.  It  may  be 
remembered  that  all  Avere  young  men  then  and  fond  of 
amusements  and  ])astimes  and  pi'actical  jokes,  and  after  the 
ju'cssure  of  the  ilrst  few  days  of  the  court  was  over,  they 
spent  their  evenings,  and  I  may  say  nights,  in  hilarity, 
which  was  at  times,  no  doubt,  boisterous.  For  instance, 
Benedict,  who  had  a  fog-horn  of  a  voice,  which  he  used 
most  recklessly  when  excited,  imd  who  had  been  roaring  to 
a  jury  at  an  evening  session,  was  met  when  he  came  to  the 
tavern,  by  the  shei'iff,  with  a  bench  warrant,  on  an  indict- 
ment "  for  making  loud  and  unusual  noises  in  the  night 
time,"  and  soon  a  court  was  organized  and  he  was  put  upon 


CIRCUIT  SCENES. 


ry.\ 


his  trial,  and  boforc  inidiii^lit  lio  was  convictod  and  S(M1- 
tcnced  to  r('|)(\it  the  oHViise  in  ar^'iiin<i-  a  motion  foi"  a  new 
trial,  or  to  pay  a  lioav}''  i\n(\  upon  tlic  nrnund  tliat  two 
atfirniativcs  would  inalco  a  JU'i^ativo,  or  that  tho  hair  of  the 
sanio  do<4'  would  cui'o  tho  bite.  It  was  sai<l  that  ho  fairly 
outdid  hinisolf  in  that  olFort,  so  that  ho  aroused  tho  wliolo 
town  from  their  slumbers,  and  ho  camo  near  boin^j;'  lined  foi- 
overdoinu'  it. 

Judoo  Voun<i^  Avas  a  good  performer  on  tho  fiddle  and 
thus  contributed  much  to  the  hilai'ity  of  eireuit  life.  As 
the  settlemonts  extended  into  the  northern  jjurt  of  the  State, 
this  oii'cuit  system  of  ju-actico  camo  with  thom,  and  for  a 
tinu>  i)rovaile(l  in  all  of  its  ])ristiiu'  beauty,  oxeejit  in  ("hioago 
alone,  where  the  visits  from  foreian  lawvei-s  wore  t)nlv  made 
upon  special  retainers  and  in  imjiortant  cases.  I  saw  ]\Ir. 
Lincoln  here  s(?voral  times  engaged  in  imjiortant  cases. 

Under  the  old  circuit  system,  when  the  State  was  divided 
into  five  circuits,  and  a  circuit  ju<lg'o  was  olocted  for  each, 
dohn  York  Sawyer  was  judge  of  the  Vandalia  circuit.  lie 
was  not  a  tall,  nor  a  very  stout  man,  but  carried  in  front 
about  the  largest  bay  Avindow  for  his  size  I  over  saw.  He 
])rosided  in  a  very  suave  way,  but  with  a  lixed  detei'mina- 
ti<:)U  to  do  ample  justice  and  without  a  very  scruj)uious 
regard  to  foniis,  especially  if  those  forms  did  not  suit  him 
at  the  time.  It  was  related  to  mo  that  on  one  occasion 
Ilubban',  who  had  a  considei'able  practice,  argued  some 
(piestivm  before  hiin  at  groat  length  and  with  great  conK- 
donce,  and  concluded  with  an  air  of  assurance  which  de- 
clared that  he  knew  ho  could  not  be  beaten  this  time.  Tho 
judge  in  his  decision  ])raisod  Hubbard's  argunu>nt  and  fol- 
lowed it  all  the  way  through,  especially  emphasizing  tho 
weakest  ])arts  of  it,  as  if  ho  was  greatly  im|)rosso(l  with 
thom,  and  then  decided  against  him  without  stating  a  single 
reason  for  the  decision.  This  enraged  Ilubbanl  terribly, 
and  he  could  hardly  wait  till  court  adjourned  and  the  judge 
had  retired  before  he  gave  vent  to  his  indignation  to  tho 
members  of  the  bar  and  other  bv-standers,  in  terms  forcible 


IP 


54 


EAIII  Y  BENCH  AND  BAR  OF  ILLINOIS. 


if  not  clo^Mnt.  mid  in  conclusion  lie  siii<l :  "I  tell  you,  <?cn- 
tlcnicn,  what  1  am  "^oing  t<»  <lo  al>out  it,  and  .so  you  nuiy 
jH'cpai'o  younselvcs  wilji  sniciiin;;'  bottli^s  or  cover  these 
streets  Avith  (|uiclv  lime;  1  am  f^oin;^  ii<4ht  now  to  hunt  up 
that  oll'ensive  mass  of  hloated  humanity,  and  1  will  relieve 
his  corpus  of  a  ju'ck  of  tad])oles  the;  lirst  slash.''  l>ut  he 
did  not  do  it,  and  I  was  told  that  the  facetious  ju(l<^e,  when 
told  of  it,  laughed  heartily  at  lluhhard's  rage,  regardin^L^'  it 
as  an  exeelhMit  joke. 

Another  ciivuit  scene,  in  which  we  may  see  how  Judge 
Sawyer  administered  the  law,  may  be  given  as  it  Avas 
toUl  to  me  by  Judge  Ford,  soon  after  1  made  his  ac(]uaint- 
ance,  in  ls;)4. 

7\t  the  time  of  which  ho  s])oke,  horse  thieves  were  pun- 
ished at  th(;  whipj)ing  post,  and  Ford  always  insisted  that 
it  was  the  most  deterent  punishment  ever  inflicted  for  the 
}>unishment  of  crime,  lie  said  he  had  often  seen  criminals 
receive  a  sentence  of  ten  years  or  more  in  the  ])enitentiary 
with  apparent  indilTeivnce,  but  he  had  never  seen  a  man 
sentenced  to  be  whipped  who  did  not  ])erce[)tibly  wince,  and 
tiiat  the  most  hardened  would  turn  ])ale  and  shudder, 

A  man  who  had  been  indicted  for  horse  stealing,  had  re- 
tained Ueneral  Turnev  to  defend  him.  TJie  general  struggled 
hard  for  his  client,  but  the  j)roof  was  so  clear  that  the  task 
was  hopeless,  and  the  jury,  after  a  short  absence,  returned  a 
verdict  of  guilty.  The  general  immediately  entered  a 
motion  for  a  new  trial  and  was  about  to  ])rocee(l  to  argue 
it,  when  the  dinner  bell  at  the  tavern  hard  by,  where  they 
all  boarded,  Avas  hoard  loudlv  calling  all  to  dinner.  Judge 
Sawyer,  as  I  have  said,  was  a  man  with  a  very  ])rotru(lent 
stomach,  and  he  especially  ])ri/.ed  his  dinner.  The  judge 
interrupted  the  counsel,  saying:  '*  (leneral  Turney,  I  hear 
the  dinner  bell  now  ring,  so  the  court  will  adjourn  till  one 
o'clock,  Avhen  I  shall  take  pleasui-e  to  hear  you  on  your 
motion  for  a  new  trial."  So  the  court  Avas  adjourned  till 
one  o'clock,  but  before  the  judge  left  the  bench  he  motioned 
the  sheriff  up  to  him,  and  in  a  determined  Avhisper,  said : 


1  h 


CIRCUIT  SCENES. 


Or) 


"  Wliilo  T  am  f^one  to  dinnortiiko  tliat  rascal  out  I'diind  the 
court  lious(;  an«l  •^•ivc  hiui  forty  laslu's,  and  luiud  you  lay 
llHiUi  on  well,  Jiud  toll  liini  if  li<;  is  «!Vcr  caught  in  this 
county  a<^iiin  you  will  ^•iv(?  him  twice;  as  nuich.'' 

After  the  whipping  the  cul|)i'it  was  turned  hinne  and  was 
taUen  char;^'(!  of  hy  some  of  his  friends,  who  washed  him  oil" 
and  batiied  his  lacei'ated  hack  with  whiskey,  and  dressed 
him,  and  when  lie  had  taken  some;  dinner  hi;  hohhled  <lown 
the  street,  and  as  lio  ])asse«l  the  court  house  he  heard  the 
j^enorjirs  loud  voice  and  ci'ossed  ovei',  and  soon  discovered 
he  was  earnestly  pleadini!,'  for  a  new  trial  in  his  case.  I'liis 
horrified  him,  and  ho  I'ushed  into  tiie  house  and  cried  out, 
"  I'or  ( iod's  sake  don't  i^et  a  new  trial.  Jf  they  try  me  ay-ain 
thev  will  convict  me  again,  and  thou  they  will  wiii[)  me  to 
»h'a"th;' 

Tlu!  i>-enoral  stood  aghast  for  a  moment  and  said,  "  What 
does  all  this  moan  i "  With  th<3  utmost  composure  the  judge 
replied:  "  Well,  (toneral  Turney,  I.  thought  wo  would  make 
sure  of  what  wo  had  got.  so  I  ordered  the  sheritl"  to  whip 
that  I'ascal  while  wo  were  at  dinner, and  I  trust  he  has  done 
so.  J>ut  go  on,  gomM'al,  with  your  argument,  for  1  am  in- 
i'lined  to  he  with  you.     1  think  another  whip[)ing  would  do 


liim  good." 


ni. 


TKIAL  OF  A    MUKDKKDU. 


In  the  year  1832  there  lived  in  the  Imttoms  of  the  San- 
gamon river  a  middlo-aged,  r<mgh  and  savage  man,  whose 
disposition  was  quarrelsome,  whose  habits  were  intenj|)erate, 
and  whose  means  of  livelihood  were  suspicious.  Jn  fact,  his 
reputation  was  bad.  lie  lived  in  a  small  log  cabin  with  a 
truck  i)atcli  near  by,  Avhich  was  grown  up  to  weeds  more 
than  to  vegetables,  and  ho  had  a  small  field  of  corn  sur- 
rounded bv  ."  slash  fence,  which  Avas  badlv  cultivated  l)v 
his  wife  and  children — of  whom  there  were  sevei'al — about 
as  rough  as  himself.     The  children  gi'ow  up  wild  anil  un- 


oG 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


Ivcmpt.  Ifo  liiul  iin  old  wa'^on,  ;i  j)l()\v,  ono  cow  mid  sovcrul 
youii;j^  ciittU'  «;To\vin;>;  up,  and  a  siiuill  <lrovo  of  li(»;i,s  wliicli 
mn  in  tlio  Uottoius  and  lived  on  mast.  A  lew  chickens 
scnitclicd  around  the  o!d  lo^-  stahk^  and  a  coupK'  of  hounds 
coniph'ted  the  inventory  ot'tlie  elVects owned  l>y  the  settler, 
ir  we  add  to  it  the  inevital)h'  lon^  haiTeU'd  rille,  l»y  ineaiis 
of  whicli  most  of  tiie  meat  was  supplied.  This  hopeful  v<»tei- 
when  in  his  cups  in  Sprin^rield,  picked  a  (|uan'el  with  a, 
peaceahlo  citi/.on  and  killed  his  man.  lie  was  indicted  lor 
the  niui'der,  and  employed  iUm.  Adams,  an  old  lawycn',  who 
had  not  professedly  (juit  practice,  thou^-li  nif>st  of  his  prac- 
tice had  (piit  him.  IJut  he  was  still  smart  enoUL^h  to  look 
<>ut  for  the  main  chance,  so  he  <lrew  up  a  bill  «»f  s;de  cov(.'r- 
in<^'  evei'v  possible  thin<>;  al)out  the  ]msonor's  placi%  except 
the  wife  and  children,  which  was  duly  executed,  and  a  lew 
days  before  the  trial  ho  sent  some  men  up,  who  brou<4ht 
away  every  movable  thin<^  which  thoy  couhl  find — except 
the  old  bed  and  table,  which  were  not  worth  brini^-ini^ — the 
cow  and  the  calves,  the  horse,  the  wag<m  and  the  pl(>w,  the 
hogs  and  the  chicks.  As  the  |)oor  woman  stofxl  in  the  cal)in 
dour  with  ho'littlo  brood  of  children  gathered  around  her  and 
saw  evorvthing  driven  awav  but  the  hounds,  it  is  said  that 
she  actually  shed  tears;  accustomed  as  she  was  to  hardship 
and  privation  she  now  felt  a  desolation  which  she  had  never 
known  before,  and  perha[)S  for  the  first  time,  a  sigh  of  grief 
escaped  her. 

Well,  the  trial  camo  off  and  his  counsel  did  the  very  best 
lie  couhl  for  his  client.  lie  pictured  in  eloquent  terms  t() 
the  jury,  the  wife  and  children  mournfully  bowed  down  in 
prayer  for  the  deliverance  of  the  husband  and  father,  whose 
destinies  were  now  placed  in  their  hands.  It  was.  for  them 
to  say  whether  he  should  return  a  free  man  to  gladden  his 
humble  home  with  his  i)resence  once  more,  or  whether  it 
should  ever  remain  as  one  of  desolation,  without  sup])ort, 
and  without  hope. 

The  generars  eloquence  was  of  no  avail;  perhaps  the  jur\' 
hud  heard  of  the  manner  in  which  the  general  had  collected 


CIRCUIT  SCICNKS. 


57 


I'is  f,.('.  which  must  have  tcndod  to  phick  the  fcnthoi-s  (Vn,„ 
the  sympathetic  cxpivssions  poi.ivd  JWth  in  tlic  coiiiisrl's 
I'li'ol't. 

The  JiKT  found  the  prisoner  n.„ilty  and  lie  was  scnt.Muvd 
to  l)('  handed. 

Ah'.ut  that  time  the  papers  were  fnll  <•[  aeeoimts  of  (h,' 
marvelous   properties   of  ek'etricitv.      It   was  said    U>   I.,- 
capal.le  of  actually  resuscitatin.n-  d(>ad  persons,  and  tl...  doc- 
tors ol  Sprm-li(dd  determined  to  experiment  cm  this  snhject 
!ind  made  arrangements  with  the  sh(>riir  to  ^ive  them' the 
l><»dy  as  soon  as  it  shoidd  he  cut  (h)wn,  that  thev  mi-ht  t<sl 
the  elllcaey  of  electricity  in  an  attempt  to  restl.re  tlw  d,.ad 
t.>lile.     Theshorilf determined,  however.that  thetest  should 
l>o  real  and  no  hundm-.  so  he  h(>pt  the  suhject  lian-ino.  |„,. 
a  <.-,„k1  l.idf  h«,nr.     So  soon  as  it  was  cut  down  it  wasl.urried 
away  to  a  doctor's  olllce,  where  the  cidprifs  counsel,  with 
several  otlier  lawyers,  were  invited  to  ho  present  to  w'itn.'ss 
the  exjXM-iment. 

The  suhject  was  quickly  stretched  (m  a  tahle,  and  the  i)oles 
ol  a  powerful  galvanic  battery  were  applied  to  various  parts 
of  th;'  hody.  The  eyelids  were  made  to  wink,  arms  and 
logs  were  made  to  strike  and  kiclc,  thounh  feehlv,  l.ut  the 
lungs  and  heart  ohstinaiely  refused  to  act,  ami  iinallv  th(> 
doctors  had  -to  admit  that  their  oiforts  were  as  futile  to 
restore  the  man's  life  as  had  been  those  of  the  lawyer  to 
save  It.  The  sheritr  had  (h>ne  his  job  too  well.  It  was  then 
l)roi)osed  to  examine  ami  see  what  had  been  the  effect  of  the 
fatal  nooso  upon  the  neck,  so  they  wont  to  work  and  rejuoved 
the  skin  from  the  neck. 

During  all  of  these  oporation.s  Gen.  Adams  had  been 
leaning  on  his  cane  looking  ui)on  this  scene  with  a  long  and 
sorrowful  face,  for  he  was  not  accustomed  to  the  scenes  of 
the  dissecting  room,  and  near  him  stood  JJen.  ]\Iills,  one  of 
the  most  eloquent  and  witty  hiwyers  who  ever  iirac'tice.l  in 
Illinois. 

At  length  Adams  turned  to  Mills,  and  said: 

"brother  Mills,  it  is,  indeed,  a  sad  sight  to  see  a  fellow 


5S 


K.MJLY  HKNCII  AND  HAU  OF  II.UNOIS. 


iiiortiil,  wlin  is  iiiiKlc  ill  t!i<>  iiiiii/^c  of  (iod,  thus  iiiutiliitcd 
and  cut  up  as  if  lie  wjtc  a  lu'iitc  lit>ast/' 

••  ^'('S.  yrs,"  saitl  Mills.  ••  It  dues  look  jU'ctty  liad,  no 
dould,  hut  lor  your  consolation,  Itrotln'r  Adams,  I  may  say 
thai  it  is  vci-y  s«'ldou>  that  a  lawyer  has  the  |»k'asur(' of  see- 
in;.;  his  client  twice  skinn«'d." 

'I'lie  old  man  "jave  a  sudden  twitch  as  if  he  had  felt  a 
hodkin  stuck  into  him.  and  then  slowly  turned  ai'ound,  his 
eyes  I'ollin;;'  as  if  in  |;ain.  and  said: 

'■  llrother  Mills,  if  it  is  just  the  sanu-  to  you,  1  wouUl 
rather  you  would  not  say  that  any  moi-e.'' 

1  tell  the  tale  as  it  was  told  to  me. 


1 


IV 


C'lia  rrr   mriir  UKi.n  nv  tuukk  .tisticks  of  tiik   pkack 

I.KAI)  MINKKS — SToinKS  OK  lUlNCll  AM)   UAU. 


-7  UK 


TluM'o  is  a  small  cluipter  of  jndii'ial  history  of  Illinois, 
which  it  may  he  well  t«»  record  in  these  later  days  lest  it  he 
entirely  for^^otten,  aiiul  that  is  that  a  Circuit  Court  was  once 
held  hy  thi'ee  justices  of  the  peace. 

On  the  -JTtlutf  Fehruary,  iMiT,  an  act  was  passed  or^anizin;^' 
the  county  of  .lo  Daviess,  and  [)lacin«^-  it  in  the  llrst  judicijU 
cii'cuit.  In  section  4  of  that  act  this  |)rovisit)n  was  made: 
'•  In  case  the  judji^e  of  the  Circuit  Court  of  said  county  can 
not  attend  at  any  re<::ular  term  of  said  court,  it  shall  he  liis 
duty  to  notify  the  clerk  of  said  court  of  the  same,  who  shall 
immediately,  on  recoivinij  siu'li  information,  notify  all  the 
justices  of  the  ])eace  of  said  county;  and  it  shall  he  the  duty 
of  the  justii-es  of  the  ])eace,  or  any  three  of  them  on 
receiving  such  notice,  to  attend  and  hold  said  Circuit  Court 
v:-  w  *  (provided  that  when  sitting  they  shall  have  the 
same  jurisdiction  as  Circuit  Courts,  except  capital  cases)." 

The  isolated  condition  of  this  county  more  than  sixty 
years  ago,  sej)arated  fnmi  the  settled  i)ortions  of  the  State 
1)V  ••■I'eat  «listances,  and  the  necessitv  for  legal  trihunals  f(jr 
settling  disputes  involving  large  })ecuniary  interests  grow- 


1 


CUaUIT  SCblNES. 


Ol> 


in;^  out  of  the  IcikI  inincs  wliicli  Imd  hccii  discovered  ;iiid 
Avei'e  then  lar^i'i'ly  worked,  no  doid>t  sii;4'i;t'sted  this  iieeessity 
foi"  some  <'X(riioi'diiiiirv  provision  to  insure  the  holdinu' of 
the  Cii'cnit  Court,  in  ciise  the  jiidnc  of  the  lir>t  circuit 
should  hi'  unahh'  to  attend;  and  no  (h)ul)l.  thou^^h  the  einei*- 
pMU'y  whii'h  ^avi;  rise  to  that  provisicni  of  law  ceased  to 
exist,  and  went  out  of  mind  and  was  (|uite  forijotten.  so  far 
as  I  have  hi'en  al)h'  to  disi-over,  it  has  never  lieen  repeah-d; 
and  if  that  ho  so,  it  is  still  tli(>  law,  and  the  jnd^^'e  of  that 
circuit  mi;;ht  ^'ive  the  necessary  n(»tice  of  his  inahilily  to 
attend,  and  that  court  miuht  still  he  held  hy  thi'<M>  or  more 
justices  of  the  peace  of  that  county.  Placing- the  county 
in  anothe!"  cii'cuit,  and  pi'ovidin;;'  lor  a  judj^'e  to  hold  the 
c(»ui'ts  in  that  new  ciivuit,  could  not  have  the  elfect  to  repeal 
this  ])ortion  of  the  statute,  any  moi-e  than  another  portiiHi 
which  created  the  county  of  .lo  Daviess.  In  pursuance  of 
this  hnv  the  lii'st  Circuit  Court  in  Jo  Daviess  county  was  held 
by  three  justices  of  the  peace. 

In  order  that  1  mif^ht  he  sure  that  my  informati<m  on 
this  point  was  correct  1  wrote  to  .1.  (/.  OWeill,  Ks(|.,  clerk 
of  the  Circuit  Court  of  that  county,  for  information  on  the 
subject,  and  received  from  him  the  following-  reply:  "  Our 
records  show  that  the  lii'st  term  of  the  Circuit  Court  itithis 
county  was  be<;un  and  lii'Id  on  Monday,  the  second  day  of 
.lune,  A.  J).  iSi^S,  The  jud;j,'e  of  the  circuit  n(»t  appearinii, 
and  the  justices  havin<;'  been  notilied,  the  following-  justice  s 
])i"esi(led:  John  Conley,  Ilu^ih  li.  Colter  and  Abner  Field. 
Tiie  iittorney-f^eneral  not  attendin<>-  nor  deputin;^-  any  ]>er- 
son  to  prosecute  for  him,  the  court  ajipoinled  Jonathan  II. 
ru<^h  to  prosecute  for  him.  At  this  term  Thos.  ISeniU'tt 
was  foreniiin  of  the  <i,ran(l  jury.  The  lirst  jud<4(?  who  ap- 
])ears  to  have  ])resided  here  Avas  liichard  M.  Yonn<4".  at  a 
term  bemin  and  held  on  Thursday,  the  eleventh  davof  Mav, 

When  the  tract  of  country  north  of  the  Illinois  river, 
and  especially  the  military  tract,  became  settled  nj>  to  a  con- 
siderable extent,  the  necessities  for  legal  tribunals  made  it 


()0 


EAKLY  BEN'CII  AND  BAR  OF  ILLINOIS. 


m 


iin|)orati\'e  that  moi-e  judicial  force  sliould  l)o  l>r()ij<ilit  into 
)V(|tiisition  tlian  tlu>  four  justices  of  tlie  Supreme  Court 
could  alford,  so.  on  the  ei_i>-htli  of  Jj'.nuary,  1S2J>,  a  hiw  was 
passed  pj'ovidiui;"  for  the  election  of  a  circuit  jud<j;-e,  ^vho 
siiouid  |>re.-iid(!  in  tlu^  circuit  to  which  he  nii<;ht  he  ap- 
]);»inted  north  of  th(»  Illinois  river,  and  lixin«^  his  salary  at 
s7.")ii  a  y(»ar.  No  law  was  ever  ])as;ied  expressly  creatinu- 
the'  lifth  circuit,  but  it  was  inferentially  created  l>y  the  law. 
antl  was  passed  the  l".>th  of  Januai'v,  l>>-21t,  which  n;  ried 
the  counties  which  would  constitute  the  iifth  circuit,  of 
which  Jo  Daviess  was  one,  and  ])rovidini;'  that  KicluutI  ]M. 
V(»un,y  should  hold  the  courts  in  that  circuit. 

Most  of  tlu^  lead  Sv-elau's  who  constituted  the  po])ulation 
of  Jo  Daviess,  went  up  the  ]\Iississii)j)i  river  from  the 
southern  ])art  oi'  the  iState.  Their  practice  was  to  go  up  in 
the  spring  and  work  at  lea<l  mining-  durinu' thesumniei',  and 
ti>  t>'o  down  the  river  in  the  fall  and  spend  the  winter  in  a 
warmer  climate.  This  annual  miizration  up  and  down  the 
rivei',  corresponded  exactly  with  the  liabits  of  a  lish  found 
in  the  ^Fississippi,  well  kn<nvn  as  sucker,  and  hence  that 
ai>pellation  was  api»lie(l  to  those  miyratory  miners,  and  was 
soon  thereafter  applied  as  a  general  name  to  the  inhal>- 
itants  of  the  State.  I  am  aware  that  some  ]!arties  havi; 
sought  to  change  the  orthogr,(j)liy  of  the  word  to  "  succor"  as 
being  more  complimentary  at  least,  but  this  is  the  origin  of 
the  word  as  given  mo  when  I  lirst  came  to  th(»  State,  lifty- 
live  years  ago,  and  I  luive  no  doubt  of  its  truth. 

These  justices  of  the  ])eace,  as  well  as  the  constaUes  and 
slu'rif,  were  elected  from  among  the  miners,  ^[any  of 
these  were  Irishmen,  whose  enteri)rise  ])ushe(!  i.em  where- 
ever  hard  woi'k  was  to  be  done,  and  a  reasonahle  reward  for 
it  was  to  be  obtained.  Even  then,  they  were  not  avei'se  to 
holding  otHce,  and  so  the  sheritf  and  justices  of  the  ])eace 
were  all  of  that  nationality,  and  wei-e  said  to  as  well  enjoy 
keeping  the  ])eace  by  l>reaking  it,  as  in  any  other  way. 
Disputes  alxnit  mineral  chiims  soon  arosr>,  many  of  them 
involving  large  pecuniary  amounts.     These  had  to  be  set- 


CIHrUIT  SCENES. 


(U 


tied  l.y  lou-iil  trilmniils  ar,  soon  as  tliov  wcmv  cstaLIislu- I 
tlMMv,  am!  so  invite!  tlic  pivsciuvoF  ai)lo  JawvcTs.  Anion.- 
t!ios<'  prac-ticin-  tluMv  uin-n  I  can...  totl.c  Stat.'  I  niavni.Mr- 
tion  l!(>n  Mills,  an.l  .lain.'s  M.  St.•o.l(^  ul.o  was  in  (..nunan.l 
ol  tlio  ni.litia  at  (iaJcna.  in  |v;i>,  when  martial  law  was 
there  det-laiv  I, 

As  the  time  for  holdin..-  the  eonrt  ai)|.roaehe.l.  it  hein..- 
understood  that  .ludnv  Vonnu'  wonid  not  he  j.resent  t(»  o|..  n 
the  court,  the  justiees  of  the  pea.-e  wiio  were  to  iMTioim  that 
dnty.  ai.|)li:>,l  to  Mr.  .Mills  for  inlonnatioi.  ;,s  to  how  they 
should  pr.K-eed.  This  laeetious  -vntleman  -av(.  them  all 
iicve.ssary  inrorniation  as  to  the  mode  of  |, roc, mm! in-',  and 
<'s|)ecially  he  enjoined  u|.<m  th(Mu  to  nuiintain  tl.(.  dioniivof 
the  court  at  all  hazanls.  and  esp.vially  to  allow  n.M.ne  to 
addre-ss  tlH>  court  without  special  permission,  or  u  :  .>n  cnlled 
up..n.  This  part  of  theirduti<"s  was  particularlv  (l\ /elt  upon, 
and  above  all  (.thers  was  treasuied  up  in  theirineniories. 

Amono-   the  other  mend)ers  of  the  bar  pn'sent  wIhmi  the 
court   was    opened,    was    an    Iri>h    lawver   n:;nie.l    X;,.-|,. 
-l5eino-  and.itious    to  he  lir.st  to    place  li'is  nanu"   up.^n  "the 
records  of  the  court. so  soon  as  tliat  an-ust  tiihunal  was  pro- 
claimed l,y  the  sheritr  to  he  open.  \ao|e  jum|)ed  to   his  IVet 
and  madesonu.  motion.    The  pr.'sidin- justice  at  once  ordered 
him  to  take  his  seat,  and  not  to  open  his  mouth  aivain  until 
ins  I)etters  had  spoken;   that  he   mu.st   h-arn  to   rc'sj.ect   the 
di-nity  of  the  court.  a!id  not  to  speak  a.^-ain  until  he  wascallcd 
upon.     Xaolo  felt  himself  <.-,vatly  outra.u'ed  at  heinn.  (hus 
summarily  suppr(.s.sed,jin<l  with  oivat  animation  dedared: 
'•  It  seems  to  me  that  your  honor  is  dani/iahlv  impreunated 
with  di-nity  this  nn.rnin;'    The  court  was  now  nM.reslH.ckc<| 
than  ever  at  this  new  affront  to  its  dionitv.  and   at  once 
onh'red   the  unlucky  attorney  to  he  hastened   t..   jail,  and 
there  to  remain  until  he  learned  respect  t(.  his  betters,  an<l 
subj(>ct  to  the  further  ord<.r  of  the  court.     The  burlv  sherilf 
at  once  seized   the  uiducky  offender,  and   in    spite  of   his 
uproarious  protests  hustled  him  off  to  the  Ion.  jail,  where  In 
was  told  ho  would  have  to  live  on  bread  and'  water  for  ai 


lie 
111 


I 


r,2 


KARLY  BENCH  AND  BAR  OF  ILLINOIS. 


indcfinito  tiiiio,  and  a  constable  was  ])laeo(l  in  cliar<4-o  of  the 
])rison('r  to  soo  that  ho  did  not  ])iill  the  jail  down  or  crawl 
thronirli  sonic  of  the  cracks. 

After  this  the  l);isiness  of  the  court  went  on  Avitli  ijreat 
re<ru]arity.  Mr.  Mills,  as  the  oldest  meniher  of  the  l)ar  ]>res- 
ent.  was  iirst  called  u|)on  to  make  himself  lieard,  an<l  then 
the  other  mendu'i's  of  the  bar  accor<lin<;^  to  their  seniority. 

Mills  apjtreciati'd  that  hiscramminf^s  had  been  but  too  well 
relished,  and  he  at  once  interested  himself  to  get  poor  Naiiie 
out  of  liis  scrajx'.  which  he  found  noeasy  task.  Inhisnam(^ 
and  on  his  behalf  he  made  most  al»ject  a]»olo<>ies,  and  (ex- 
pressed the  •^'•reatest  contrition,  which  Xa'jfle  himself  would, 
no  dijubt,  have  re|)udiat(Ml  had  he  known  of  them  at  tlie 
time.  lie.  however,  did  g'ct  him  released  aftiM'  a  day  or 
two's  conliiK  inent.  and  it  was  never  h(>ard  aftc^r  that,  that 
the  court  had  ever  cause  to  complain  of  any  disres[)ect  to  its 
(liu'iiity,  when  hehl  l>y  those  justices  of  the  i)eace. 

This  was  the  relation  as  <>iven  me  bv  Jud<'e  Younj; 
himself,  asheheai<lit  in  (ialena.  when  heheld  his  first  court 
there.  He  further  sai<l  that  aft<'r  he  had  opened  the  court 
tile  hiwyei's  tfot  up  one  after  the  other  and  made  their  mo- 
tions, and  the  business  ])roceeded  in  the  usual  quiet  way. 
>\fter  he  adjourned  court  for  noon,  while  ho  was  walking- 
uj)  to  the  tavern  for  his  dinner,  he  was  accosted  by  one  of 
those  same  justices  of  the  ]>eaco,  who  said  :  '*  Well,  Judge', 
I  see  those  lawyers  are  having  domd  foine  times  here  with 
you."  *•  Oh,  yes,"  replied  the  judge,  '*  we  are  getting  along- 
very  finely,  I  think."  ••  Ves,  yes."  said  the  justice,  "but 
<lom  "em,  when  we  held  court  we  made 'em  sipiat." 

V. 

PRACTICK    IX    AN<!Tni:iJ    CorNTV — t)KFKNSK   OF   ONE     ACClSr.n   OF 

TUKFT. 


In  the  sju'ijigof  Is;',.*;.  I  <lctermine<l  to  extend  my  practice 
to  Tutnam  county,  which  was  a  large  county  then,  and  tho 
oldest  settled  in  tho  n<jrtheast  part  of  the  State.    I  started  on 


LIUCLIT  SCENES. 


(\:\ 


horsobaek  from  r'lii(^j<;<),  find  on  my  wjiy  from  rutjiuii  to 
ll('iiiic|tiii  I  Icll  in  with  Tlioiiiiis  Il.ii't/cl  and  (icoriic  I'.. 
AVillis.  both  of  whom  I  had  met  in  thclirst  political  conven- 
tion evci-  held  in  Illinois.  It  met  at  Ottawa,  on  the  4th  of 
March.  \>.'A.  Dr.  David  AValker. of  Ottawa,  was  |>i-csidcnt. 
and  I  was  secretary.  We  nominated  one  senator  and  one 
rei)rese:itative  for  the  district,  emliraciii'^'- all  of  tec  north 
l)art  of  the  State,  includir  'eoria.  J  was  <:lad  to  meet  them 
a^ain.  They  hoth  were  old  residents  of  lIennei)iM.  1  e.\- 
])lained  to  them  that  I  was  «><>inu-  t(»  attend  their  cciirt.  iind 
inijnii'cd  as  to  the  amount  and  character  of  the  hasiness  in 
the  conrt  and  of  the  lawyers  who  usnally  atten<ied.  1'hey 
said  there  was  r/(//if  .si/ni/'f  of  hnsiness  there,  arid  there  was 
talk  of  m<»re,  and  some  of  it  ])retty  important,  and  that 
thei'e  were  some  criminal  cases  on  the  docket;  that  there 
was  hut  one  lawyei*  in  Hennepin,  a  yoiinjj;'  man  just  come  in. 
named  Thomas  Atwater,  who  had  never  be<'n  in  coiii't  yet. 
They  wonid  he  ^lad  to  help  m<'  all  they  coidtl.  There 
was  a  man  in  jail  for  larceny,  and  if  I  could  pt  him  olf  it 
woidd  make  me  famous. 

"  Prohahly,"  said  I,  "the  man  is  oujlty  and  tli(>  proof 
clear;"'  if,  so  the  condition  to  success  which  tley  suiiiL';»'ste<l 
was  rather  hard. 

They  said  it  did  appear  to  1)e  a  pretty  had  ce.se.  as  one 
witness  swore  that  he  saw  the  pi'is(tner  steal  the  "^'oods.  and 
that  h<'  had  confessed  hefore  the  mau'istrate  that  h<'  did 
steal  them.  IJut  he  had  friends  in  the  town  tliet  still  lia<l 
their  douhts  about  his  <>uilt.  and  there  was  (piite  a  ji-enei'al 
feelini''  that  ther-e  was  a  sort  of  mystery  about  it  that 
needed  explanation,  w!ucli  mi<rht  bo  possible  witii  shrewd 
manau'ement. 

Ihit  he  was  not  mvcli(Mit.  and  T  saw  no  likelihood  that  he 
ever  would  be.  True,  he  was  poor  and  unable  to  fee  a 
lawyer,  els  .Iiose  from  abroad,  v.ho  had  been  in  the  juibit 
of  pi'acticin<i^  there,  woidd  surely  be  employed.  I  \  the  court 
should  have  to  assi<;:n  him  counsel  I  miiiht  stand  s<ime 
chance,  us  the  vouii"'  lawyers  arc  most  likelv  to  i»o  selected 


(;4 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


who  liavo  no  otlier  l)iisin('ss  in  court  Hut  Ju(lfl;o  Brocsc 
was  to  Iwtld  the  court,  uiul  I  liad  never  met  liiuj.  and  he 
nii^ilit  not  think  it  sate  to  intrust  the  cass  even  jiaitially 
in  \\\y  liands.  I  stojkped  at  the  tavern  kept  l>y  my  iriend 
AVillis,  and  in  wliieh  the  larceny  had  been  committed.  I 
was  inchistrious  making  tiio  acquaintance  of  everybody  1 
could  meet. 

The  judge  and  several  lawyers  ])ut  in  an  appearance  in  the 
afternoon  of  the  dav  after  mv  arrival,  and  1  soon  made  their 
ac(piaintance;  I  tried  to  l)e  unassuming,  but  not  restrained. 
.\t  11 1'st  1  thought  Judge  Jii'cese  was  a  little  res(>rved,  but 
when,  on  comparing  notes,  we  discovered  that  we  both  canus 
from  I'tica,  ^'.  Y.,  his  bearing  seemed  more  cordial.  Jle 
had  left  there  sixteen  years  b;'fore,  I  had  come  from  there 
but  two  years  befoi'e,  and  lie  liad  many  things  to  incpiire 
about  relative  to  his  old  home,  and  of  course,  I  could  tell 
him  much  that  was  interesting  to  him. 

lie  o])ened  court  the  next  morning  in  an  unfinished  frame 
building  ami  organized  the  grand  ju)'v,  who.  in  the  course  of 
an  hour,  brought  in  a  true  bill  against  Pierce  for  grand 
lai'ceiiy.  The  state's  attorney  at  that  time  was  James 
(irant,  of  Chicago,  now  Judge  (irant,  of  l)aven|)ort.  Iowa, 
]*ierce  was  soon  brought  into  court,  when  the  judge  asked 
him  if  he  had  counsel,  and  he  replied  that  he  had  not,  and 
ha<l  nothing  with  which  to  pay  a  lawyer,  and  in  answer  to 
an  intpiii'v  of  the  court  lie  expressed  a  wish  that  counsel 
might  l>e  assigned  him. 

The  judge  tlum  asked  mo  if  I  would  undertake  the  pris- 
oner's defense,  assisted  by  Mr.  Atwater,  if  he  would  consent 
to  assist  in  re[)resenting  the  prisoner.  We  both  consented 
and  were  allowed  to  take  our  client  out  of  <loors  and  confer 
with  him  in  the  shade  of  a  tree.  I  then  tohl  Pierce  that  the 
iirst  thing  for  him  to  do  was  to  tell  us  the  exact  truth,  for 
if  h(!  was  guilty  we  could  make  a  much  better  defense  for 
him  if  we  knew  it,  and  all  of  the  attendant  circumstances, 
and  that  if  he  were  innocent,  it  was  all  important  that  we 
shouhl  knov.'  it,  certaiidy. 


siiiNKV  ni{i:i;si: 


i 


CIRCL'IT  SCKXES. 


r; 


).) 


IIo  tlion  assoi'tci!  in  \\w  most  solemn  manner  lliat  lio  was 
•  'iitiivly  innocent  of  tlie  Jaiveny.  and  his  .'xplan.-.tion  of  liis 
confession  of  ^r„ilt  was,  that  after  the  Jaiveny  ha<l  l.een  .lis- 
covoml,  and  the  <ro.,(ls  had  l)i>en   fonnd  in  a  tiiinU  which 
holono'ed  to  liini  oi-  Jiis  wife,  she  had  come  to  liim  and  tohl 
liim  that  Thompson  had  i)ei'sua(h'd  lier  to  Join  him  in  steal- 
in*,^  the  i^oods.  and  that  they  to^Ti'ther  liad'tak(Mi  them  from 
the  box  ami  put  tliem  in  the  trunk;  that  un(h'r  this  pres- 
sure, and  in  onh'r  to  o^ive  his  wife  a  chance  to  escai)e  t<. 
("incinnati,  where  lier  inothiM-  lived,  lie   had  confess!-!  he 
st(.le  the  o(„„|s.     That  after  he  had  made  the  confession, 
Thomps(.n  had  come  up  and   swore  that  he  saw  him  steal 
them.     That   Thompson    was   a    hully  and    a    ruliirn,  and 
everybody  was  afraid  of  him. 

The  story  was  told  in  such  a  Avay  as  to  convince  us  Ix.tli 
of  its  entire  ti-utli.  I*ierce  was  evidently  a  simple-mind. mI, 
rather  a  weak-minded  man,  who  could  be  p;>rsuadel  to  do 
anythino;  by  an  artful,  ami,  probably,  a  ba;!  woman. 

J}ut  Ik.w  were  W(^  to  |)rove  the  truth  {  The  convicticm 
that  lie  was  innocent  made  us  anxi.nis  to  pi'ove  it  if  the 
proof  existed.  We  iiad  but  little  time  to  pre])ar(;  the 
defense— to  rake  up  every  thread  and  <'V(>ry  circumstance 
which  carefully  woven  t(.<rether  mi^ht  tend  to  ])rove  his 
innocence,  for  tlie  trial  was  set  for  the  next  m.)rnini:'. 
Whati'ver  was  to  be  done,  mi.  ,t  be  done  in  a  few  hours. 

The  first  ray  of  linht  we  o<)t  was  from  Tierce  himself 
who  said  he  was  sick  on  th(>  nii>ht  ot  the  theft— so  sick 
indeed  that  he  could  not  have  left  his  bed. 

Followiui.-  this  clew  we  o-„t  the  name  of  the  doctoi-  who 
attended  him  and  of  an  old  woman  who  had  nursed  him 
that  nio-ht. 

We  now  b'lt  that  we  had  made  some  ])ro,nivss  and 
separated  till  after  dinner.  In  the  meantime  .\twater  was 
to  tind  the  doctor  and  the  nurse  and  i^^et  their  stories. 

I  walked  down  the  street  ahme  toward  my  hotel,  medi- 
tatin<r.  My  attention  was  i)resently  attracted  by  a  subdued 
voice,  and.  as  1  looked  up,  I  saw  a  man  com in<--  toward  me 


1 


66 


KAULY  BKNT'II  AND  BAR  OF  ILLINOIS. 


witli  a  (|iii(Iv  st<']).  AVlicn  ho  caniciij)  lie  jiskcil  me  if  T  w.i;-; 
to  (Icfcnd  I'icicc.  I  told  liim  that  I  was.  '•  Well,"  said 
lie,  "lie  is  imiitccnt;  aJid  if  voii  will  <i'o  a  iniU'  and  a  half  on 
the  other  side  of  tlu'  river  you  will  eoine  to  a  lo<ihoiise,  in 
which  live  a  couple  named  Fit/<i('rald.  They  know  s(^nie- 
thint;- to  help  you.  (iood  day,  sir,"  and  he  turned  (prickly 
and  walked  awav,  look  in*"' about  hiiu  as  if  he  was  afi'aid  of 
lK'in<i'  seen. 

late  my  dinner  liastily,  took  my  saddh'-horse.  and  sof»n 
crossed  the  rivei*  on  the  fei'ry-flat  and  <iallope<l  away  acr(»ss 
the  I'iver  hottoni  till  I  reached  the  hlulf,  where  I  found  the 
lo<;'  cabin.  When  I  (Mitered  the  house  I  incpiired  of  the  _l>'oo<I 
Avonian  who  met  mo  if  her  name  was  Fit/.uciald.  She  said 
it  was.  I  told  hei'  that  I  was  a])itointe([  by  the  coui't  to 
defend  Pierce  (m  a  charge  of  larceny;  that  I  was  convinced 
of  his  innocence,  and  understoo«l  that  she  and  her  husband 
knew  something-  about  it.  She  was  evi«lently  not  ])leased 
Avitli  my  visit,  ami  at  first  denied  knowing  anything  about 
it,  and  said  ])eo[)le  got  along  best  who  mintled  their  own 
business. 

I  represented  to  her  the  enormity  of  tlie  ciinie  of  letting 
an  innocent  nuin  go  to  the  penitentiary  on  the  testimony  of 
a  perjui'e<l  scoundrel  like  Thomj)son,  who  was  himself  the 
thief,  and  that  she  could  never  ske])  "well,  if  she  refused  to 
tell  what  she  knew  that  would  save  an  innocent  man  and 
shield  the  guilty  one;  that  if  she  did  this  the  ghosts  of  in- 
nocence would  haunt  her  all  hei'  life,  and  that  I  Avould  see 
that  Thom])son  left  the  country  (juick  or  went  to  the  peni 
tontiary  so  that  he  could  harm  no  one. 

She  began  to  w«»aken  at  last  and  Hnally  went  out  and 
called  her  husband,  lie  showed  the  same  I'eluctance.  and  I 
had  to  go  over  with  my  reasonings  and  [H'rsuasions  again 
with  both. 

At  length  tliov  fairly  gave  in  and  the  old  lady  said  sh(» 
woidtl  tell  mo  all  al)out  it;  let  what  would  come,  she  would 
not  have  innocent  blood  on  her  hands. 

She  said  that  the  night  of  the  larceny  she  and  her  lius- 


It 

I 


I 


I 


(IIJCriT  S«F.NF,S. 


1)/ 


1);m1(1  slept  ill  Ji  l'!'(l  ;it  the  liciid  of  till' stilil's;  tli:it  (lill'illi:- tilt' 
niylit  tlicv  licjinl  it  noise  in  ii  room  l)ei<»\v;  tliat  they  Itoth 
yot  U|)  and  ciireriilly  ci'eitt  down  the  stjiirs,  mid  there  ihev 
saw  through  the  cracks  in  the  lathiiii;'  in>t  yet  plastei-ed, 
this  in:in 'l'iioin|>son  ;md  Mi's.  I'ierce  taice  the  ^i'oods  ont  ol' 
the  hox  and  |>nt  them  in  the  trnid<  where  they  were  fonnd, 
and  that  I'ierce  was  not  there  at  all.  They  liotli  promised 
to  come  lo  til"  court  the  next  mornitiii'  and  tell  all  they 
knew  il"  the  devil  stood  at  the  dooi*. 

I  was  now  h:i])|>y  and  m;i  le  v  'ry  last  time  \r.wk  to  town 
and  was  (|Mick  in  sendinj^Mlie  sherill'  over  with  a  sul»|uena 
for  ixitli  to  make  sure  woi'k  of  it. 

I  now  I'elt  sure  that  we  would  accjuit  our  man.  Of  course, 
not  a  wcu'd  was  lisped,  even  to  I'ierce.  of  the  witnesses  1 
had  found;  my  ahsence  had  lieen  nnaccountalde  to  Atwiitej-, 
till  told  of  the  result,  when  we  nu't  after  my  j-etnrti.  Then 
I  leai'iied  that  he  had  found  the  doctor  and  the  nurse,  and 
that  they  would  hotli  he  on  hand  and  testify  that  Pierce  was 
too  sick  that  niiiht  to  have  left  his  hed  and  committed  the 
larceny. 

I  (lid  not  slcv^ji  v(^ry  soundly  that  ni-iht.  for  T  Wiis  too 
busy  thinkiuii'  up  the  s|!eecli  I  W(»uld  make  to  the  jury.  It 
was  manifest  that  the  more  !  should  ahuse  Thompson,  the 
better  it  would  take  with  everybody,  for  lu'  was  both  huted 
and  feared,  and  the  man  who  dared  to  abuse  jiiin  roundly 
would  do  a  |>opular  thiu'i.  Mud  then  when  I  shoidd  ha\e 
])rovod  his  ])erjury  and  lai-ceny,  all  would  admit  that  he 
would  desei've  all  I  could  liive  him.  I  piled  U|>  all  of  the 
bittei'cst  ejiithets  I  could  thiidv  of.  which  I  wouhl  hurl  at 
him  in  such  a  dehu^-e  as  would  even  make  him  hate  him- 
self. 

I  lia<l  no  fear  of  p<'rsonal  violence  from  him,  liully  as  he 
])rofessed  to  bo.  I  was  vounu"  (twentv-three  veai's  oldi.  .•ind 
wei<^he(l  11M>  pounds,  was  active  and  (»f  exceptional  sti'eiiuth. 
and  felt  p«'rfect  eonlldence  in  my  ability  to  take  care  of  my- 
self, lie  seemed  about  liftv  vears  of  ai'-e,  autl  to  weiiih 
about  175  pyunds. 


If 


<)S 


KAKLY  m-SCU  AND  ]).\U  OF  IT.LIXOTS. 


We  wrro  ])i'<>iii|>tly  oil  liand  iit  the  <>iM'iiiiii:'  ol'  the  (•(»iiit 
flic  next  morning-,  iiiid  siton  iit'lci-  liiut  llic  sjitisractinii  oT 
sccin;^'  tlio  iiiirsc  iind  ddctoi*  iippcai'  jmd  tiikc  bjick  scats,  mid 
slioitly  iil'tcr  Ml',  and  Mis.  Fit/^'crald  cauic  in  and  iniiiiilcd 
with  the  (■f(»\vd  of  spectators  \vh(>  now  lie^aii  to  (ill  the  little 
court  room,  whih'  many  more  were  seen  on  the  oiitsi(h',  as 
ir  a  considerable  interest  was  I'elt  in  the  proceeding',  lor  it 
was  <^'enerally  iiiKh'i'stood  that  I'ici'ce's  trial  was  to  he  the 
llrst  i-eal  liiisiness  transacted.  We  had  heeii  strictly  silent 
i'.s  to  tlu^  evidence^  we  had  discoxci-ed.  hut  soiinOiow  there 
seenuHl  to  he  a  •.^'•eneral  e.\]»ectation  that  some  impoi'tant  de- 
velopments niiii'ht  I)e  made. 

1  was  espe<ially  <iratilied  to  f)l)serve  that  Thompson  was 
there.  He  took  a  front  scat,  with  an  air  of  conlidence.  if 
not  of  deiiaiico,  belittin<>-  that  of  a  hold  thief  an<l  a  bully 
who  was  ready  to  commit  perjury  to  cover  u])  his  crime. 

Pierce  had  been  l)roui;ht  in  and  was  seated  beside  us  at 
the  bar,  which  consisted  of  a  |)lain  deal  tabU,'  about  six  feet 
lonu"  and  three  feet  wide.  JIo  was  ])ale  and  nervous  and 
fairly  shivered  from  we:ikness  resultini;'  from  hisrei'ent  sick- 
ness and  coiiliiuMiient  in  the  little  h)i;'  jail.  He  felt  that 
though  innocent  he  was  alreadv  condemned.  He  could  sec^ 
lut  way  of  escape,  foi"  we  had  felt  it  our  duty  to  conceal  our 
discoveries  from  him  as  well  as  all  others,  for  Tliom]>son 
must  on  no  account  get  the  least  inklin<>"  of  th(>m.  1 
encoui'au'cd  our  client  with  the  ])ositive  assurance  that  \\o 
would  be  ac(iiiitted,  and  finally  that  we  had  found  evidence 
which  would  clearly  show  his  innocence.  This  heljied  him 
some,  but  it  could  n(»t  entirely  dis|)el  hisdesi»air.  1  did  not 
i'(\i>-ret  this,  for  his  woe-beg'(Hio  api)earaiice  was  a  ]iowerful 
apjieal  to  all  for  sympathy  and  pity,  which  of  its(>lf  would 
have  lieen  of  gTcat  service  in  a  <loubtful  case.  As  yet  the 
jurors  were  dis]KM'sed  among  the  crowtl  aiul  must,  to  a  cer- 
tain i'xtent,  jiartako  of  their  feelings. 

AVlien  the  case  was  called  we  announced  onr  readiness  for 
trial,  a  jury  was  soon  impaneled,  and  the  state's  attorney 
nuulu  a  shoi't  opening,     lie   stated    that    the  ti'ial  was  a 


i 


b 


riRCnT  SCKNIH 


(;:• 


tllM'i' 


CK 


fniMii,    wliicli  the  law  re  |iiir.'.l   Icfore  t'lf*    pi-IsoiitM- 
lid   l)('  scut   lu  lli(>  i)("iiit(«ntiiiry.     'I'liiit  li.'  Wdiil.l   |iio\.- 


s<»  deaf  a  case  that  it  would  not  Ik'  ii 


cci'ssai'v  to  ioiiVL'  llifir 


seals  iM'Torc  rctiinniin- a  vcnlict  olHiiiliv. 

The  usual  practice  tlicii  was  foi-  the  (lefeDve  to  state  its 
case  at  this  point,  l)Ut  we  ivipiested  the  i'avoi-  top.isIpuMe 
this  till  after  we  had  hcafd  the  te^tiinony  I'ur  the  |>cople. 
This  was  i^faiited  without  oltjeclion. 

Mr.  (ii'aiit  proved  that  the  ^-oods  were  nailed  up  in  a  drv- 
e'oods  hox  in  an  utirurnished  room  in  the  hotel,  and  that 
they  were  suhsccpiently  found  in  a  trunk  Itejonn'inn-  to  ihe 
prisonei'.  He  then  pr(tve(l  that  the  prisonei-  had  confessed 
to  the  inaii'istrate  that  he  stole  the  ,::'oods.  and  he  proved 
their  value.  He  then  called  Thompson,  who  took  the  oath 
with  a  sort  of  indill'erent  swa'^7^('r  and  to(»k  the  stand,  lie 
swore  without  tlu>  least  liesitation  that  he  saw  J'ierce  when 
li(!  took  the  ^dods  from  the  !>o\.  and  ])laced  them  in  the 
ti'uidx,  and  that  he  saw  him  lock  the  ti-unk. 

We  liad,  as  yet,  cross-e.\a mined  none  of  the  j)c;iple's  wit- 
was    cross-ex- 


o  everN'tliiiiL: 


»   and 
e  was 


nossos.  l>ut  not  so  with  Thompson.  H 
amined  in  such  ;i  way  as  to  make  him  sweai-  t 
in  the  most  ]K»sitive  way  with  every  detail  of  tim( 
]»Uico,  and  as  to  Piei-ce's  every  motion  and  acti(»ii.  JI 
well  iU'(piaint(Ml  with  him  and  could  not  he  mistaken,  hut 
lie  scarcely  knew  Mrs.  I'ierce  and  had  not  seen  her  that  da  v. 
He  swore  that  Tieive  seemed  well  and  stroni;',  for  he  had 
liroken  o\)ou  the  box.  and  removed  the  e»„„ls  jn  ;,  ^av  that 
showed  he  was  in  a  lini'ry,  and  iie(>(led  no  one  to  help  him. 
Every  st(>p  of  the  cross-examination  seenu'd  t<»streniitlien 


tlio  case  ao-ainst  us.  as  1  intended  it  should,  by  enahliiiL'- 
lompson  to  make  uj)  as  consis<^ent  a  stoi'y  as  ])ossil)le  hv 
caving-    all    of    the  Ii(>s  into  it  tliat   wei 


Tl 


^v 


V   necessai'v    to 


null 

could  CHmtradict  him  in,  and  before  I  had  tinished  I   had 


v-e  it  consistent,  ami  esiurially  such  lies  as  I   knew    I 


le  case  was  e'tniio-  alon^- 


])erfect  mountain  of  them;  for,  as  tl 

so  smoothly,  he  th(.ui;ht  he  had  everything'  his  own    wav, 

and  could  toll  what  he  pleased  without  our  bein«''  able   to 


ro 


r.AHI.V  HKNCH  ANIt  l?\i;  Ol     ILLINOIS. 


'Irlcct  it.  If  lie  Iiiitl  Ii;mI  old  law  Vci's  to  (|r;il  wit  I;,  or  less 
siiiiplr  oiic:;,  lie  Would,  no  doiil)t,  liiivc  liccn  iiuuli  iiioic 
(■■•iiitioiis. 

When  I  di>inis>('<l  tlic  witiirss  he  left  tlic  stiiiid  witli  a 
wau' of  the  lir;id  and  an  ail' of  conlidrncc  and  satisl'action 
that  lie  made  norllort  toconcral.  'I'hc  jurv  loolxcd  positivdv 
disti'cssrd.  and  the  andi«'nct'  nianircstcd  tlicirdisappointnn'iil 
and  clia^'-i-in  at  the  incllcfiix*'  way  in  wliicli  I  had  ci'oss- 
t'xanuncd  'rhoni|»son.  lor  their  only  hope  was  that  hf  could 
he  luokfii  down  «tn  ci'oss-cxaniination,  loi-  all  lH'li«'V('d  he 
was  lyin;:- all  the  time;  in  lact.  that  I  had  ^ivi'ii  away  all 
of  th»'  case  tlu'i'c  was  to  oivc  away. 

I  then  afosc  to  state  the  defense  we  e.\|)eeted  to  make.  I 
stated  that  as  it  now  looked,  the  statement  of  Mr.  (iiant  in 
his  ojieninir,  that  this  ti-ial  wonid  he  hut  a  matter  of  form, 
and  only  tt»  satisfy  the  forms  of  the  law  hefore  sending'  the 
prisoner  to  the  penitentiary,  seemed  jnstilied;  Imt  we  ex- 
pected to  make  it  a  nnitter  of  snhstance,  and  that  Pierce 
wonId  not  he  the  man  to  ^o  to  i he  penitentiary  for  that 
larceny. 

1  lii'st  explained  why  the  confe.'.sion  was  ma<le.  That 
aftei-  the  larceny  was  discovered  and  the  <i<)ods  found  in  the 
ti'unk  and  a  ^j^reat  commotion  was  hein^iinade  ahout  it,  Mi's. 
Pierce  had  come  to  her  hushand  and  in  <,n'eat  <listi'ess  told 
him  that  'rhomjjson  had  pei-suaded  her  t«»  join  him  in  steal- 
ini:' the  <:oods  and  that  they  two  had  stolen  them  and  put 
them  in  that  trunk.  'IMiat  she  implored  him  on  her  knees 
to  do  something' to  divert  attention  fi'oni  Ik'I- until  she  could 
no  to  her  m»»tlu'r  in  ( "incinnati.  That  ovei'comi'  hy  her  tears 
and  entreaties,  he  hail  consented  to  confess  the  larceny  him- 
self and  trust  t(.' tln>  futui-e  for  the  I'csult,  althoULjh  hy  so 
doinii'  Thompson  wouhl  have  an  <»pportunity  to  escai)e  pun- 
ishment also. 

That  this  man  Thom])son  was  a  huUy  and  a  I)raii*;art  an<l 
boasted  of  the  t«'ri-ihle  thiuiis  he  ha<l  <lone  to  his  enemies 
and  had  actually  so  ti'rroj'i/.ed  many  of  the  t^ood  people  of 
the  town  that  tliosc  who  knew  tlie  truth  of  tlie  matter  had 


i 


II 
I 


CUICUIT  SCKNIX 


71 


tl('i'in('<l  it  |»i';nl('iit  t(»  l<<'('|)  tlicir  inoiiilis  shut.  Tliiil  we  IukI, 
liowcvci',  siiccfcdcd  ill  liudiiii;  two  most  cfrdililc  witnesses, 
who  act  wall  V  saw  'rhuin)>sini  and  lliis  u  omaii  steal  the  uunds, 
and  that  we  wuuhl  |ii'ove  liy  tiie  doctoi' and  the  niii'se  that 
I'iei'ce  was  Vel'V  sii'k  on  the  nii^ht  when  the  eoods  were 
stoh'ii.and  eonhl  not  | lossi lily  have  n()t  up  nnd  e«*niiiiitted 
the  theft. 

'I'honipson  had  ]>l;;('ed  hiinself  as  neafly  het'in-e  nie  as  he 
eonhl  ilurinLT  my  opening',  and  h>o|<e(|  liereely  and  (h-liantly 
;it  lii'st.  1  occasionally  ;ilanced  at  him  with  a  i|iiiet  and 
sati,;lied  smile.  IJeiore  I  closed,  his  countenance  was  a  real 
jiictiii'e.  Tin'  time  I'o)' the  epithets  had  not  come  yet.  so  I 
<lid  not  use  tli(>m,  hilt  contented  myseir  with  slatini;-  the 
simple  facts  in  tei'iiis  as  short  as  would  snllire  to  do  so. 

.Mv  little  speech  had  4'\  ideiitly  Jirodllct  d  the  desireil  etleet. 
.\n  e.Npi-essioji  ol'  relief  was  manifest  on  evei'y  countenance. 
Mveii  the  jndiic.  who  Inul  hitherto  appeared  as  impassise  as 
a  block.  I)rii,ditene(l  up  and  leaiM'd  forward  as  if  to  catch 
everv  woiij.  and  when  I  sat  down.  \\v  straiehteiied  up  and 
hioked  around  with  an  expression  which  seemed  to  say  ;  "If 
all  of  this  he  true,  this  'J'lioliipson  must  he  the  "greatest  villain 
I'einainiiiu  on  this  earth  nnhiin-^'."  llefore.  he  seemed  to  have 
takon,  no  interest  in  the  caso.  >iow  he  was  awakened  to  ;i 
lively  interest. 

lie  said.  "  Mr.  Taton.  call  yoar  witnesses."  in  a  tone  wliich 
(clearly  manilesteil  his  im|>atienci!  to  hear  the  e\  ideiice.  which 
should  prove  such  total  depravity  in  a  human  heinn'. 

I  lii'st  called  thedoi'toi'.  who  tcstilied  that  he  ha  1  attended 
the  |ii'isoner  and  visited  him  latu  in  tluM'veninu' of  the  ni^ilit 
when  'riiompson  swore  he  saw  I'iei-ce  steal  the^^oods.  I 
inado  the  direct  examination  vcvy  shoi't.  1  just  jtroved 
what  I  expected  to  hy  jiiin.  and  leavin^^  it  to  the  cros.s-ex- 
aminatioM  to  Iii'Iiil;- out  the  thousand  little  incidental  facts 
which  J  knew  would  strengthen  the  case  more  in  that  way 
than  if  hroiiuht  «»ut  liy  nie.  A  vit;'oi'oiis  att<'m|it  to  break 
<lowii  tlu'  testimony  of  a  witness  on  ci'oss-exami nation,  if  it 
fails,  istrengthens  thu  case    imim.'asurahly.     1  really    think 


7ii 


EARLV  UEXCII  AND  P.AU  OF  ILLINOIS. 


that  tlio  state's  attorney  l»i>liev(\l  that  the  <liict<»r  had  ex- 
at!i:'ei'atr(l  llie  man's  sickness,  and  hence  he  went  at  him 
ratliei'  liei'celv,  hut  my  man  seemed  to  have  ;;iu\\  n  sickei- 
and  sicker  as  lie  pi'o'^ivssed  and  gave  all  ot  t!ie  details  of 
t !ie  case. 

It  was  manifest  that  F  had  succeeded  in  oon^jth  :e!y  hi-eak- 
i)iU'  (h»\vn  'rh(»m|)si>n's  tei'i'orism.  and  it  s  • 'incd  to  me  tiiat 
tile  doctoi"  was  anxious  to  show  liiat  he  did  not  I'a.ie  a  hut- 
ton   t'oi'him. 

1  next  caUiMl  tlie  nurse,  and  she  testified  tliat  slie  had  iieen 
with  the  ];<"isonei'  ahnost  the  entii'e  niuht  i-ei'ei-i'ed  l»».  Sli.> 
showed  liiiH  to  hav.>  hee!i  i'uUy  as  sick  as  the  (h»ctoi- had 
done.  That  he  Iiad  sutJ'eivd  wry  much  and  wns  so  weak 
tliat  he  couhl  not  turn  in  bed  witliout  he!]).  That  she  was 
positively  cei'tain  tiiat  he  <lid  n<»t  leave tlie  room  that  ni^ht, 
and  tliat  he  couhl  not  have  (huie  s(»  had  his  lii'e  «lei)en«h'tl 
on  It.  She  furihi'i'  stated  that  .Mrs.  I'ierce  lid  not  come  near 
her  Iiushand  «hirinn'  all  of  that  ti'rrihle  ni«ilit,  and  had  uot 
'•i'eii  scva  ill  his  i'(»o;ii  since  some  time  in  the  at'ternooii  be- 
fore. It  was  evident  that  the  state's  att(t:  lu-y  now  beuan 
to  a|ii)rcciate  that  tliere  mi;;'ht  be  somel'.iin:,'-  nai  ui  this 
(h'fcMse  and  that  it  was  not  imj>.»ssil>le  that  he  "was  rclyiiiLi 
u|ton  ])erjured  testimony  to  convict  an  iunoccMd  man.  His 
cross-examination  of  the  nur.se  was  short  and  foi'mal. 

1  now  called  Mrs.  Fit/g-erald.  who  came  foiward  with  a 
lirm  stej)  and  lirm  look  v.diich  manifestly  said  she  was  no 
loiiii'ei'  afraid  of  Thomjison.  She  told  how  sh(>  and  her  lius 
hand  were  slee])in^'  in  the  cliaini;er  near  the  in  ad  of  tlu* 
stairs,  when  about  nudniuht  they  were  awakened  l»y  a  noise 
in  the  room  i)elow,  when  tlu'V  both  e(»t  Uj)  a.nd  crept  softly 
down  the  stall's,  on  w  iiich  they  st'ated  themselves,  and  j)lainl\- 
saw  t!ir'.agh  the  crack  in  tlie  lathing-,  this  man  Tliom|)soiu 
Avliom  she  pointed  out.  and  Mrs.  Pierce,  take-  the  u'oods  from 
the  dry-u'oods  box,  cai'i'V  them  aci'oss  the  i'(»om  and  ]»lac. 
them  in  thetruniv'.  When  thetruidc  se  nied  full  they  closed 
and  locked  it  and  Mi's.  Pierce  ])nt  the  key  in  h«'i'  pockt't; 
then  both  took  the  trunk  and  curried  it  to  a  corner  of  tlie 


CIRCl'lT  SCENES. 


/•J 


rooiii  ;u)il  left  it:    tluit    there  \v;is  one  candle  in   llie  » in; 

when  the  tninU  \v;is  set  (h>\VM  th<>v  hastened  Ihk  k  to  theii- 
hed  without  Wiiitiiiu'  to  see  when  or  whei'e  'I'homp.du  niid 
Mrs.  I'ieive  went. 

In  this  ca.se  there  w;'s  ;>  (  ross-e.\iiniin;ition  on  the  uiiittei- 
ot"  i(h'ntity,  hnt  it  oidy  served  to  convince  everyone  thiit 
the  woMiiin  knew  wii;it  she  w;is  t;ilkin<i'  alioiit.  ;ind  tliiit  it 
was  certaiidy  'rhitinpsoii  and  Mrs.  Pierce  that  she  saw  sleal 
the  u'oods. 

I  next  calh'd  Mi-.  Fit/.u'craM,  and.  as  I  have  olicii  oiiserved 
111  (tther  cases,  "'the  j^'ray  mare  in-ovcd  the  heiier  horse:" 
still,  lie  corr«»horated  his  wil'e.  which  was  all  1  wanted  ol 
hini.  thonuii  not  with  the  decii^ion  and  litmncss  wlnCh  sjie 
had  nianirestecl.  I'.iit  I  cared  nothin'j  Tor  tliat:  I  l;new  ilmi 
we  ah'eady  had  enonn'h  te-tiniony  in  to  conxince  ever\' 
rational  mind  that  Pierce  was  an  innocent  nt:in  and  that 
Thompson  was  a  very  wicked  liai'.  Willi  this  wiiitess  we 
closed  our  case.  .Mi-,  (ii-ant  proposed  t«  sulmiit  it  to  the 
jury  without  are-uinent. 

Put  we  could  not  tliinlc  of  throwini:'  away  sncli  an  ojipoi'- 
tiinity  and  merely  said  that  we  had  a  duty  to  perrorin  to 
t'le  prisoner,  which  wi-  could  not  omit,  and  must  present 
our  views  ot"  the  case  t(»  the  jury. 

The  state's  at'orney  then  op.'ued  the  rase  hriellv.  (hoiiith 
he  did  as  well  as  any  '  lan  could   have  done,      it    w,,-,  uuini 
Test  Ik'  Celt    that    tln^      efciidant  was   inn<(ent.  and  that    h. 
was  aslciny  the   jury  lo  convict    him    upon   perjiir.'ij    testi- 
mony. 

.\twater  follow  el  with  his  maid:'n  s|»e'-li.  whicli  was  ;i 
very  tidod  one.  lie  Ll'i'ouped  the  le;;»i;iloliv  toi^- ■!  her  \ei  \- 
systemat  ic.illy,  and  showed  how  each  pait  siipporleil  e\erv 
other,  all  pointinu'  to  the  absolute  innocence  of  the  .Mciised, 
^ly  turn  to  address  the  jury  now  came.  .\s  I  aro.->e  I  felt 
as  if  every  friend  I  had  in  the  world  was  whisperini;'  to  iiic 
that  I  must  now  mak'e  a  supreme  eH'oi't,  not  so  miirli  foi-  uu 
client,  for  he  was  now  safe,  hut  for  myself.  In  f;i(t,  f  was 
fairlv  saturated  with  mv  siihject.  and  thedmiLicr  was  that  1 


I 


EAHLY  HENCII  AM)  lUR  OF  ILLINOIS. 


sliuiild  sli>|»  over  juid  s:iy  t(»<>  iiiiich  or  not  at  the  I'iulit  time, 
or  ill  tlic  n;;lit  way.  rather  than  1  should  omit  aii\  thinu'.  1 
l>e;ran  in  a  very  (piiet  ami  moderate  way.  statiiiu'  that  Mr. 
Atwatei-  had  so  well  and  so  t'lilly  [ireseiited  the  ease  that, 
ill  truth,  he  liati  left  little  forme  to  do.  I  jiresented  the 
test  iiiioiiy.  however,  ill  my  own  wav.  lirst  ei)iisiderinu' 
oiir  own  tfst  iinoiiy.  showing'  l'i<'ree's  ahsoliite  iniioccnee. 
and  th -a  ti  »'.<  ii|»  the  t  'Uim  oiy  I'i'lie  1  ii|).>n  loi' the  |>  Mipic, 
e.\|»laiiiin,'  tlie  re  ison  •,  for  thec-onression  as  heloi-estaleil.  and 
rrfcrriiiLr  to  the  cireiimstanees  which  showed  that  that 
explanation  was  true,  dwellinii'  ii|)on  l*ierc!''s  eiilceliled 
condition  I'rom  I'econt  sickness  and  his  poverty.  I'imhi  which 
he  was  iiiiaiile  to  em|>loy  counsel  to  delend  him  or  hiiy  iiim 
a  supper  after  they  should.  I»y  their  verdict,  set  him  free.  I 
then  took  iiji  the  teslim;)iiy  of  Thoaipsoa.  when  1  hevan  t<» 
warm  up  to  my  work  in  earnest. 

It  was  ('videiit  that  the  piihlic  temper  demanded  all  of  the 
hard  t  liini:>.  that  could  he  said  of  him.  I  showed  th.ii  when 
I'irirc  lay  sick  nntodeath.  when  he  re(|iiired  and  had  a  riizht 
to  claim  the  most  constant  and  devoted  "are  of  the  wife  who 
had-  sworn  hefore  (io«l  at  his  sacred  altar  to  cleave  only  unto 
him.  this  Mack-hearted  villain  had  seduced  her  from  her 
.ille;_''iance  to  him.  in  the  lio|ie  that  he  iiii^ht  die  from  her 
neu'leet.  and  then,  in  order  to  jdace  her  the  more  com|»letely 
ill  his  lustful  pow«'r.  as  well  as  lor  naiii.  had  pei'snadetl  hel- 
lo join  him  in  the  peipct  r;il  ion  of  t  his  crime,  and  when,  in 
>|»ite  of  her  neglect,  he  had  refused  lo  die  and  l»e( miic  coii- 
valesc.-nt,  and  tlie  larceny  hail  heeii  diM-ovcrcd  and  the  law 
was  s-archiii'j:  for  the  thiel,  he  had  concocted  that  diaholical 
phtt  and  s<'iit  the  w:'cpiii'j:  and  apparciitL  p«'niteiit  woman 
to  her  eiifci-lilcd  hiisliaiitl  to  persuade  him  to  confess  ihe 
crime.  This  plot  was  hut  loo  successful,  and  when  I  he  sick 
mail  hail  ;:i\eu  his  e\eiy  cent  of  UKMH  «  to  eiiahle  her  to 
escape,  which  she.  no  doiiht.  divided  with  her  paramour,  and 
was  sent  to  the  jail,  then  ii  ^as  that  this  lieiid  in  liiiman 
form  fairly  made  the  devils  i»liisli.  hy  Itoldly  staiidinu'  up  and 
swcaiiii'i-   that  he  saw  I'ierce  ■i.t.'al  theeoodsl      If   he  <  oiild 


' 


CIKCLIT  HCENIX 


ff 


swt'iir  PlfPcr  into  the  ic'iiitciitiiii-y  foi' ;i  t'l-m  uf  yen's,  lln- 
Ii('l|»!('ss  \V(»:iiiiii  Would  Id-  (•(nii]>l('t"ly  ill  his  ixivvcr  ami  In- 
roiiM  ciiii.y  lifi- society  at  liis  will  without  the  iiittii'creiicc 
of  her  cillc.'hh'd  hllshilld. 

Whih'  I  was  in  thr  midst  of  this  tira  Ic  I  tiinicd  |ia:'tly 
ai'oiiiid  to  catch  an  c\|)l•c^.sioll  of  the  aiidii'lice.  ami  discovenil 
h!>hiiid  iiie.  and  not  inoi-e  than  two  I'eet  I'l'oin  me.  this  man 
'rhonipson,  with  a  h<'avy  hliidu'con  in  his  hand,  the  |ieis|>iia- 
tioii  iMHiiin;;'  I'l'oin  his  lace,  his  eye  ularili;;'  tiei'<'ely  at  me 
with  a  terrilily  lieiidish  expression  on  his  coiinteiiance.  I  at 
once  coiichuh-d  that  he  had  ci<'|it  n|>  there  in  orih-r  to  mal.e 
a  deadly  assault  iij)on  me,  when  my  hack  was  to  him.  To 
say  that  tiiis  made  me  tcri'ilily  amrry  is  to  pnt  it  mildly. 
That  was  one  of  the  few  times  in  my  iih'  when  1  lia\e  hi'cn 
really  mad.  I  felt  in.-tantly  inspire  I  with  a  siiperhmiian 
si  ren^lh.  which  wonid  eiialile  me  to  crn.sh  an\  living:'  man 
to  the  earth  in  a  moment.  I  >ilarcd  upon  the  snpicme 
M-oiindrel,  a  lool<  of  scorn  and  detestation  ami  deliaiici-. 
which  I  was  told  later  s;'eme:|  fit  to  wither  a  statne.  I 
pointed  my  linu-cr  in  his  very  hice,  and  called  upon  theconrt 
and  jury  to  hole  at  the  c((\vardly  assassin,  who  had  not  the 
coiira^iv  to  attack  a  child  in  the  face,  hut  must  skulk  np  lie- 
hind  so  he  coiild  strike  llliseeli.  I  then  proceeded  to  poll i 
iipiiii  him  deiiiiiicialions  and  epithets  >.  Inch  riishe;l  upon  ii.t 
hister  than  I  c<»nld  niter  them.  'I'errihle  words  of  exec  rat  ion 
seemed  to  coin  t heniselves,  and  1  poured  them  out  with  the 
rapidity  of  a  tornado,  coiistan'  ly  emphasi/.in;;-  them  l»y  liei-ce 
iiesticiilat ioii.s  riiilit  into  his  face,  which  was  now  red  .-iml 
now  pale  like  the  chaii^'inii'  Mashes  of  a  horeal  li;iht.  Some 
of  these  anathemas  have  heeti  rin^in«.i'  in  my  ears  ever  since. 
Their  hare  memory  makes  me  shudder.  What,  then  must 
have  heeii  the'l-  eU'ect  whli  poll  red  ont  under  silch  /Xcite- 
melit  i 

The  culprit   stood   this    for   a    little    while    with    a    hold 

deliant  expression,  as  if   lookimi'    for  a    t;' I  t  iine  to  st  rike. 

hill  soon  he  he:^an  to  uiakeii  a  lid  show  doiiht  a  lid  hcNi- 
taiic\.     'J'his  expression  grew  ii[)on  him  more  ami   niore  for 


76 


I:ARLY  liKNCII  AND  BAU  OF  ILLINOIS. 


I>    . 


t  !i 


scn'oral  ir.iniitcs.  wluMi  lie  l);ick('<l  toWiird  the  door  tlii(>iii;'li 
the  (Iciisc  ci'owd.  who  sliniiilv  tVoisi  Jiis  touch  ;is  if  ho  had 
lii'cn  ii  slimy  snake.  J  called  upon  tln'  Kt;!te"s  jittornev  to 
|»i-osecute  the  |H'i'jui'ed  thief,  now  that  he  knew  for  ;i  cei'- 
tainty  ^vho  was  the  <;iiilty  jtarty.  I  called  upon  the  shei'ilf 
to  ai'rest  the  scoundr.'l  before  he  should  reach  the  woods 
and  hide  Jjis  i;-uilty  head  in  the  liushes.  1  called  on  all 
<;-ooil  citizens  to  scorn  and  spit  upon  so  loathsonu^  a  wi'etch. 
I  a<lvised  all  decent  women,  whenever  they  saw  him,  t<» 
liar  their  doors  and  windows  as  against  a  lejK'r,  whose  very 
breath  was  contamination,  and  1  kept  slioutin<4'  after  him 
in  this  nnseeudy  way,  till  he  was  fairly  out  of  sii;ht.  I 
ther  paused,  and  tnrne<l  aroun<l  and  was  silei.t  for  a  fevv" 
minutes,  and  then  every  man  in  the  court  room,  except  the 
judLt'e,  was  on  his  feet  and  seemed  half  bewildered.  I  at 
leniith  a|>oh»;ii/ed  to  the  coui't  for  the  unseemly  eNhihition 
which  I  nnide  in  a  presence  where  diiiuity  an<l  modi  ration 
should  always  i'eii:ii.  hut  I  hop'd  he  would  lind  in  the  scone 
which  had  pi'ovoked  me  some  apolo<;y  for  the  breach  of 
decorum  of  which  1  was  coiu;(ions  1  had  ixcn  guilty. 
After  a  monuMit's  pause  .lud^e  IJreese  reni'U'ked,  "  V(»u  can 
pi'oceed.  }Ar.  ('aton."  I  then  tui'iied  to  the  jury  and  apoi- 
onizcd  to  them  foi-  j.aviui;-  for  a  moment  foi'i^'otten  myself 
and  the  presenc;'  in  which  1  was.  undei' a  provocation  which 
mii^ht  have  exciteil  an  older  luan.  I  then  said  the  evidence 
had  made  the  pi-isoner's  innocence  so  manifest  that  I  did 
not  think  that  his  interest  re(|uired  tiuit  1  should  hju^cr 
detain  them. 

The  state's  attorney  tlien  closed  the  raso  with  a  short 
spe(H-h.  which  virtually  ,ii'av«»  it  up  and  left  it  I'oi' the  jury 
to  say  which  of  the  witnesses  they  would  believe  and  which 
they  would  disbelieve. 

The  jury  I'etii'ed  without  a.ny  chai',i:'e  from  the  judn'e  and 
in  a  few  minut(^s  returned  with  a  verdict  of  Ni>t  <j'i!il;/. 

The  vei'dict  was  i-eceived  with  a  nninifestation  of  approval 
which  was  sternly  checked  by  the  court.  wluMi  it  was  entered, 
tli(!  pi-isuner   dischai'u'ed  and  the  court   udjoui'ned  at  o?u'e. 


CIRl'UIT  srL:\ES. 


i  / 


Tliiii  followed  a  scene  of  hand  sluikinir  very  unusual  at  that 
time  iu  a  western  asst'nd>laii-e.  Pierce  was  eoiiui'atulated 
and  "uti  wen;  eon«^i'a  tula  ted,  not  only  by  tlu>  jury  hut  l>y 
everv  one  else?  who  i-ould  ;:"et  n(»ar  us. 

At  length  tlie  i'o<»ni  heuan  to  clear  and  we  wer(>  al)le  to 
move  toward  tin*  door,  I  was  iuiiM«'diately  suiroun(h'd  l>y 
clieiiis  anxious  to  secui-e  uiy  services,  and  Ix'Tore  1  reached 
my  hotel  I  was  retainecj  iu  nearly  evei-y  case  jiendinu' 
in  the  court,  and  in  sevei'al  impoi-tant  ones  to  he  <-om- 
nieneed.  Two  of  these  w«'re  cli;!ncery  suits,  which  proved 
in  the  end  to  he  of  more  real  li.'Uelit  t(,>  uw.  than  any  other 
cases  I  ever  was  employed  iu. 

When  1  left  that  town  I  took  away  with  nu' ahout  oiu' 
hundred  and  fifty  dollars  iu  money  and  ahout  the  same 
amount  iu  i^-oo:!  notes,  which  in  those  days  of  ^]u:\\\  fees  '*,as 
cousid;M'ed  as  doinu'  extraoi-dinarily  well  for  a  heii-innini:'.  iu 
a  coui't  which  lasted  less  than  a  week.  .More  than  that.  I 
had  he(Mi  vei'y  foi'tunate  iu  p'ttini:-  on  th(>  ri:!it  side  and  so 
had  won  ue;irly  every  case,  which  /^ave  uce  a  reputation 
which  was  of  uu>re  valiu'  than  all  «tf  the  rest. 

AN'heu  I  iiKiuired  foi- 'I'hompsou  he  had  disa|>peared  and 
no  one  could  tell  uhere  he  had  u"<»ne  and  I  could  nevci-  h-ai'ii 
thai  he  was  ever  seen  or  heard  of  in  that  town  afterward. 

.Vfler  the  court  adjoiuaud  t!ie  tei'ui.  we  all  that  is.  the 
judii'c  and  several  lawyers,  made  our  way  to  (Utawa  (ju 
horse-hack,  where  the  next  court  was  to  he  held.  At  that 
tiuu'  western  hostelries  had  not  attained  to  that  state  of 
retiiU'UU'Ut  which  places  al)lution  funiitui'e  into  sleepinu' 
i-ooms.  hut  all  had  to  pi  down  stairs  and  wash  in  a  tin 
hasin  ])la('ed  on  a  hench  out>:<ie  the  ii«»use.  When  I  <-ame 
down  from  my  room  the  moruiuu' after  our  arrival.  1  had 
mv  coat  and  vest  on  my  arm.  that  I  miiilit  he  I'cady  fir  the 
toilet  proc(>ss.  which  was  to  he  pe>-formed  outside.  When  I 
reached  tlu^  har  I'oom.  (U'olHce  as  it  wouhl  now  Ix^  called, 
the  first  man  I  saw.  was  that  same  villain  'l'honi[»s(Ui  with 
that  same  alpine  stick  in  his  han<l. 

"You  old  villain."  said  I.  •■  what  are  you  hei'<'  for  f     Uas 
not  the  sheriif  •••ot  vou  under  lock  and  kev  yet  i" 


78 


i:\inA'  HKXfFI  AM)  BAR  OK  ILLINOIS. 


"I  liiivc  cniMc  ii|)  lit-rc  to^iivo  yoii  m  tliriisliiii'^',"  s.-iid  lie: 
*•  vou  iii.Niilti'il  me  till'  ollici'  (liiv  iilid  I  liMVc  eoiiU!  to  settle 
it." 

I  <lro|t|M'(l  my  cniit  jiiid  vest  onto  ji  cliiiir  juid  st(^|nird  up 
close  to  him  ;md  siiid  that  now  was  the  time  to  heiiin.  That 
1  had  no  fears  of  one  so  stee|»e<l  in  crime.  That  so  ItlacU  a 
villain  must  necessarily  lie  a  coward,  and  i  auain  ovev- 
Miielme(|  him  with  e]»ithets.  I  knew  if  he  was  u'oiiiL:'  to 
strike  at  all  he  wonld  have  d(»ne  it  on  tiie  instant.  .\  mo- 
ment's liesitation  was  fatal  to  his  purpose.  I  spoke  in  a, 
]ir.  ily  loud  voice,  and  directly  a  crowd  gathered  aroniid.  to 
whom  I  related  his  villainv,  and  who  soon  manifested  sii;ns 
of  hostility.  (Ml  percei\  inu"  this,  he  turned  and  made 
directly  for  the  ditor,  and  made  (piii-k  tracks  out  of  the  town, 
and  I  have  never  seen  or  heard  of  him  sinco. 


VI. 


(  iiAN<  i;i;v  SI  iTs~-si  IT  AoAiNsr  ciir..  sii;aw\ — kakm.v  days  nX 

I  UK   Ki:.NCII. 


I      I 


ll  .li 


y 


In  my  last  T  s|!oke  of  two  retainers  which  T  receiv"d  at 
Hennepin  upun  my  first  attendance  upon  the  Circuit  ('otiit 
there.  As  the  (-(Uidiict  of  these  cases  residted  in  the  ureat 
est  professional  benelits  to  me.  it  may  Ic  well  to  speak'  of 
them  moi'e  jtarticularly.  'Hiese  henelits  did  n(»t  consist  so 
much  i't  the  amount  of  compeMsatioii  which  1  received  as  in 
the  amount  of  learning'  which  I  oliiained  iii  their  manaiic 
meiit.  iJoth  were  suits  in  chancery,  which  were  filed  to 
enforce  resultiiii;  trusts.  I'p  to  that  time  I  had  not  paid 
particular  att'iitioii  to  chancery  law,  and  had  had  but  little 
experience  ill  that  branch  of  the  professi<in.  'i'he  first  '.vas 
r,  ibb  V.  Strawn.  In  t!iis  c:ise  a  bill  had  b-en  filed  liy  Mr. 
peters,  of  I'eoria,  to  coiup;-!  ("o|.  Strawn  to  convey  to  the 
complainant  the  t<»wn  sit(«»f  I.acon.  then  iii  I'ulnam  coitntw 
np<in  the  ^'I'ound  that  the  land  had  been  eiitfred  w  itii  the 
complainant's  money,  and  to  aieount  for  moneys  receivtHl 
oil  the  sale  <jf  town  lots. 


^ 


elliCUlT  SfENKS. 


71» 


Altli<»ii"li  no  ;nis\V('i'  liinl  1m'ci\  (ilctl  as  yet.  ("<>1.  Stniwii 
liinl  tiilvfii  a  livt-at  mass  of  dcpiisitions  to  prove  the  valii»>  ot 
liis  services  i-eiKlei-ed  in  layiii«;-  out  the  town,  seiliiii;'  of  h»ts, 
and  otherwise  Iteiielitiiii:'  the  trust  propei'ty.  In  this  eon 
(lit ion  of  the  suit  I  was  retained.  1  |)roeur>>d  an  ix-der  from 
the  court  oi'dei-inii'  the  (h'|iositions  to  he  o|»ened.  a  carelul 
examination  of  which  (|iialilie(|  me  hetter  to  diaw  an 
answer,  than  1  could  have  (hme  iVom  my  client's  statement 
iif  the  facts  without  them.  l!y  a'j'rccment  wilh  Mr.  I'eters. 
the  venue  was  chan^i'ed  to  l.a  Salle  county,  to  which  the 
reciirds  were  at  oiu-.-  ti-msmitted.  a  copy  of  which  1  oidered 
for  my  own  use. 

The  other  was  a  ca c  of  Wrnliuh  v.  Wauhnli.  'I'his  was 
a  ci-s'  where  a  family  of  t!n'  namo.  ci.iisistini:' of  a  father 
and  niothei'and  several  children,  hail  s(|uatt;'tl  upon  a  (jUar 
ter  section  of  hmd  adjoiniii'j,'  the  town  of  Laetm.  had  Imilt  a 
house  in  which  they  lived,  ami  luul  made  other  valuahle 
improvements  on  the  land.  Some  timi'  hefor.'  the  land  came 
into  mnrket,  when  it  wwuhl  Ite  pn.;,il>!e  t(»  prove  up  a  |>re- 
empti<»n.  the  father  died,  leavini;'  the  wile  and  children  upon 
the  |tremises.  The  mother  was  an  invali<l  ami  had  heeu 
conlined  tv>  her  I»;m1  for  the  previous  twe1v(>  yeai's.  rmler 
her  (lirecti:>u.  however,  and  ^•eiieral  supervision,  tin'  farming! 
business  had  lieen  ca.-ried  on  l>y  the  children,  all  livini: 
t«»j:'ether  upon  the  pi-emises,  derivinu' their  support  from  the 
piM,lu:-ts  of  t'l  '  farm,  Ue-'pinn'  n!>  ae.'Cints  aiu'eiu'  them- 
selves, and  claimin.'.*'  no  se[>arate  interest  in  any  i)ai'l  of  the 
property. 

William  Wauhuh  was  the  oldest  son  and  so  t<iok  the  ucn- 
i>ral  management  of  alVairs.  WIhmi  the  land  came  into 
marl'et  he  |»'oved  up  a  pi-e-emption  in  his  own  nanu'  and 
took  the  title  to  himself  and  paid  for  it  with  money  derived 
from  the  sale  of  the  products  of  the  farm,  as  the  others 
claimed,  while  he  insist(>d  that  he  ohtained  the  money  from 
other  sources,  and  this  was  the  most  im[i()rttuit  (piestion  of 
fact  litie-ated  in  the  case, 

iSuoii  lifter  the  entrv  was  made,  William  claimed  to  own 


II 


so 


KAIfLY  J^HNtil  AXU  HAH  OF  ILLINOIS. 


the  liiiid  ill  liis  own  ri^ilit,  ulicii  the  iirxt  oldest  ln'otlicr 
came  ii|»  1(»  the  (Mnirt  at  llrimcpiii  t(»  seek  lc;:al  advice,  ami 
hein;!;' satislied  with  the  iiiaiiiier  in  which  I  had  con(hicte<l 
I'iei'cii's  (h'Teiise  he  retaiiiiNl  jn>;  having-  no  inoney  with 
wliich  he  could  ])ay  me  a  i'etain«'r,  l)Ut  (h'chii'in<i'  himself 
al)l(!  to  pay  th"  coiii't  expenses,  he  pi'opo.n'd  to<i'ive  me  one- 
halt'  of  the  lan<l  if  1  shonld  win  the  case.  l»nt  to  pay  nie 
)iothin<r  if  I  shonld  lose  it.  He  liron<;ht  to  me  several 
iiei^i'hhoi-s  who  coalirmt'd  his  statement  of  th«^  facts,  as 
ahove  stated,  from  which  1  wass:ilisH  -d  th;it  a  result  in;;'  trust 
('(Hild  be  «'stal)lislic(|.  I  took  full  notes  of  t!ie  facts  fr<  ni 
which  I  conid  di'aw  the  hill,  commenced  the  suit,  so  as  to 
cstahlish  a  lis  j  ,  „'l<  ns.  making' all  the  other  mendiers  of  the 
family  c«»ni|»lainants  ami  William  Waidiuh  defend;int.  I 
ohtaiiieil  leave  to  lile  the  answei"  in  one  case,  and  the  hill  in 
the  othei-  at  the  next  term  of  the  coui't. 

As  hefoi'c  stated,  I  had  never  hefoiv  |)aid  much  attcMi- 
tion  to  chancei'v  law.  and  I  now  detciMuined  to  make  it  a 
sp<'cial  study.  Not  only  that  which  related  to  r.'sidtijij;- 
trusts,  hut  to  all  other  hranches  of  that  deiKirtment  of  my 
pi'ofession.  including;'  the  ])racti(e.  j»lea<lin;'s  aial  ^cnd'al 
principles  upon  whicii  courts  of  chanceiT  administei-  r.'lief, 
and  J  applied  myself  to  that  study  with  untiring'  industry. 
Kent  and  Story.  Iloll'man  and  Daniels,  and  many  other  text 
l)ool<s  were  read  and  r<'-read  fi'om  Ix'^^inninj^' to  cud.  and 
compai'cd  one  with  an(»ther.  Jiotini:,'  pai'ticularly  wherever 
they  disau'rced.  in  which  cases  I  examined  tht;  I'cfei'ences. 
that  I  mi;i'ht  foi-m  my  own  conclusions  a.s  to  ^vhich  was 
I'iiiht.  hoth  on  authority  and  on  reas(>n  o-  |)rinci])le. 

Of  coe.rsi'.  dnrinn"  th(>se  r<'searches.  everviliinn'  i-elatiuii^  to 
resulting-  trusts  was  s|iecially  noted  and  treasured  up  in  the 
nienioiw;  not  only  this,  I  read  case  by  case  all  of  dohnson's 
Chancei'v  Repni'ts,  and  all  of  the  chancery  ca^os  found  in  the 
Kentucky  lieports,  us  well  as  in  the  reports  of  other  States 
to  which  J  then  had  access. 

To  this  task  I  devoted  all  my  leisure  time  for  two  years 
at  least,  and  b'jcanic  so  familiar  with  t!ie  subject  that  1  rarely 


\ 


c'lKcriT  s(i:nks. 


81 


licnrd  ii  (|ii('stii»;i  I'liis-d  in  coni't.  citlicrnf  |»1c;i'liML:'.  pi'iictic.' 
or  |>iiii(-i|)lt>.  tli.'it  it  Wiis  Mot  iiliiiost  as  l'iiiMili:ii'  to  me  ns  my 
;il|»ii;ilM't.  ami  I  was  astonislicd  to  sco  otlicr  lawvcis  and  tin' 
coiii'ts  licsilatt'  ll|»ii:i  (|ii<'.slioMS,  wlicl'c.  it  sciMncil  to  ii\r,  there 
slioiiM  lie  no  (jonlit  at  all. 

Now.  it  was  the  accident  of  my  haviii!::  lie  mi  i-etained  in 
these  two  eases  that  |irom|ited  liie  to  t  his  thoroii^^h  conrse 
of  study  of  chancery  law.  which  laid  the  foundation  foi-.iny 
meiit  I  mi\  have  aci|nii'ed  as  a  chiinceiT  lawyer,  and  when 
1  went  on  the  Sii|ireme  i'.ench.  at  thirty  years  of  ii-jc.  I 
fonnd  I  was  vastly  more  familiar  with  chancery  law  than 
any  of  the  other  jndu'cs.  atid  hence  it  wa  >.  that  ne.irly  all  of 
the  chancery  I'.-cords  we!'e  assiuned  to  nn-  for  a  luinilr.'r  of 
years  in  that  court,  as  will  he  seen  l»y  any  one  who  will 
examine  the  IJepoi'ts,  connneiicinn'  with  the  tliii-d  of  Se;im- 
moii  and  followine*  up  to  the  twelfth  oi*  lifteeiith  of  Illinois. 

I  had  lieen  upon  the  liench  alioiit  a  month, and  (  hief  .his 
tice  Wilson  had  distriliuted  the  records  to  oth(>i' nnndiers  of 
th<' court,  till  1  thotijiht  he  considei-ed  me  so  much  of  a  hoy 
ihat  he  (hM'n\ed  it  not  wise  to  eive  me  any  I'ccord  on  which 
I  should  write  an  ojiinion.  Kinally.  the  case  of  I-'rishy  v. 
P.alance  lia\ini;'  heen  ai'^iied.  was  taken  up  in  the  conl'erence 
room.  The  (  hief  .lust  ice  < 'a lied  for  o|iinioi>s  from  each  one, 
hut  no  <ine  was  ju-epared  to  express  an  <ipinion  without  fui- 
thei"  consideration,  and  I  did  the  same,  althouiih  1  li.ad  jiretty 
distinct  viewsahout  the  case.  The  (  hief  .1  ust  ice  then  oU'ered 
the  recoi'd  for  niorc  cai-eful  examination  to  each  nu'mlier  of 
the  court  in  succession,  hut  each  made  some  excuse  for  not 
taking'  it.  till  he  came  to  me,  wlieii  he  laiti  it  on  my  desk 
and  said:  '•Here,  ('aton.  this  is  a  uood  case  for  ymi  to 
In'eak  in  on.'  The  record  was  a  lai'^ic  one.  and  the  I'ules 
then  reipnred  neithei'  ah.itract  nor  hrief.  hut  only  the  record 
as  it  came  from  the  Circuit  Court  was  filed.  I  took  the 
I'ecord  without  demurrei'  or  remark.  When  I  <^i>\  ti  niy 
I'oom  1  pitched  into  it  as  a  hunery  nian  would  into  a  (hrist- 
mas  dinner.  I  first  read  it  all  throueh  carefully,  and  then 
made  a  full  abstract  of  it. 


«2 


KARLV  HKNfll  AND  BAR  OF  ILLINOIS. 


I  then  fully  (li.u'cstcd  it.  iiiid  ciU'cl'iilly  set  down  tlic  scvci'.-il 
]H»iiits  uliicli  it  |tr('s.'iitc(l.  hotli  of  law  and  fact.  I  then  I'c- 
rxaniinc*!  the  fact;'  and  set  down  my  conclusions  upon  cacli 
one.  I  tlicn  tooU  the  |»oints  of  law  which  arose  in  the  case. 
u|>on  which  I  thought  I  knew  what  the  law  was.  hut  to  In- 
sure.  I  went  to  tlu?  lilirary.  and  made  ii|)  a  I>rief.  I  then 
stated  my  coiu-lusions.  with  the  authorities  in  sii|t|)ort  of 
them.  I  then  wi'ote  out  the  opinicMi  as  it  n(»w  appears  in 
the  l';'|)ort.  hut  hefore  I  presented  it  in  conlerence.  I  a>;l\ed 
(iovernoi-  Kord  to  my  room  and  read  it  to  him.  and  asUed  his 
ci'itici>m  npon  it.  Althoiiyli  he  had  deci<Ied  it  in  the  court 
lielow  and  my  oi)inion  reversed  his  <lecision.  he  a|)proved 
the  opinion  and  highly  complimented  it.  The  only  point 
npon  which  I  reversi'd  the  «leci'«'e  helow.  was  that  he  had 
granted  allirmative  relief  to  the  defendant  without  a  cross- 
hill,  the  error  of  which  lu^  readily  api)reciated.  All  of  this 
tool<  nu'  at  least  a  wcelc. 

When  I  read  the  opinion  in  the  conference  ro<»m.  all 
readily  a^'reed  to  it  exce|»t  upon  the  very  point  on  which  1 
rev'-rsed  it.  on  which  point  all  at  lirst  di>ai:'ree<|  with  uie. 
reallv  hecause  all  had  heen  in  the  hahit  of  <irantin<:'  such 
relief  without  a  cross-hill,  on  their  circuits,  dudtic  i'reese 
was  ])articularly  strenuous,  and  cited  a  clause  in  the  statute 
which  authorized  the  tlefeiidant  to  ])ut  interi'o;:atories  for 
the  complainaJit  to  answer,  at  the  close  of  his  aiiswei*  to  the 
hill.  1  I'ouii'ht  it  out  ri^ht  on  that  lino,  hrouj^ht  in  the  hooks, 
and  sliowod  the  reasons  which  •governed  the  use  of  every 
part  of  chancery  ))leadinus.  and  linally  ohtained  the  appi'oval 
of  all  th(»  nuMuhers  of  the  court,  and  I  have  no  douitt  that 
this  rule  has  evei*  since  prevailed  in  this  State,  and  i)r<»l)ahly 
there  ai'e  very  few  now  iivin<r  that  have  any  snsi)icion  that 
any  other  rule  ever  ])revailcd  here,  even  on  the  cii'cuit. 

Aftt'r  tiiat  I  had  never  cause  to  complain  that  a  fair  pro- 
portion of  the  records  were  not  given  me.  for.  with  rare 
excej)tions.  I  received  all  of  the  chancery  ivcords.  and  as  all 
the  evidence  was  then  retjuired  to  be  presented  in  deposi- 


•| 


llKCL'IT  SlI'NlX 


CO 


I 


i 


tions.  tlicv  usiiiilly  invulv(>(l  t]i<«  most  l;il»i»i\  mikI  T 
lil:'t  with   <»|»|i(»sitH);i  to  tiiy  coiicliisioiis. 


vcrv  III  I'd  v 


'I'liis  state  of  lliiii!:s  impi'csscd  ii|m)|)  me  tlw  idea  of  a  Mrcat 


ill 


rcspoiisiliility.  Tlic  jiiris|tni(lfii(M'  uf  fhc  State  was  then 
its  iiifaiiey.  We  wei-e  then  layii);;  down  ndes  uliieli  wnv 
to  he  roHowed  Iiy  those  who  shoiihl  come  after  us.  and  il 
was  (»f  tlie  ureatest  im|toi'ta!ie;'.  intt  oiilv  to  oiii-selves.  per- 
sonally, hilt  to  the  jn'ol'ession  irenei'ally,  that  these  i-iiles 
should  he  sileh  as  to  heal'  the  test  of  time  and  of  the  closest 
scrutiny. and  I  intended  to  spare  no  lal)or  or  pains  to  acconi- 
l>lish  this  result. 

J  have  tlioiiL;ht  it  minlit  he  prolitahh'  to  some  \-iinnir 
niemlcrs  of  the  har  to  le;irn  how  it  was  that  I  lieeimie  a 
pretty  n'ond  chanc'-ry  lawyer  while  yet  a  ver\-  voiiiih-  man. 
NVhat  J  leariK'd  so  early  and  so  well,  it  seems  to  me.  I  re- 
meiiiher  pretty  well  ye!,  alt  hoii'.;li  I  have  learned  a  ,;;ivat 
deal  more  since. 

Ilavinu-  thus  explainiMl  how  it  was  that  these  two  cast's 
indirectly  redounded  s(t  much  to  my  advaiita^'c,  it  mav  !),• 
]>roper  that  I  hrielly  follow  t-acli  one  up  to  the  end. 

The  case  of  iJahh  v.  Strawn  I  argued  hefoic  ,lnd!.;e  |'i(  r- 
son,  in  Ottawa,  at  the  fall  term.  Is:;?.  The  only  real  (pn  ^- 
tion  considered  was,  us  to  the  amount  of  compeii.atioii  nir 
client  was  entitled  to.  ("olomd  Strawn  was  not  salislied 
Avith  the  anioiint  nivcn  him  hy  the  decree,  and  so.  hy  his 
direction,  I  ai)p(>aled  it  to  the  Supreme  Court,  and  ariiiied 
it  in  that  court  at  Va.nd.ilia.  at  tlu^  D-'cemh.-r  li'i-ni  in  !->::>. 
That  was  the  first  case  I  ever  aruiied  in  tliat  court.  That 
court  then  consisted  of  only  four  judiics  Wils(»n,  Smilh. 
Lockwood  and  iJrown.  They  allirnied  the  decision  hv  an 
e(pial  division  of  the  court,  and  I  was  so  ungenerous  a!  the 
time  us  to  helieve  that  they  tlndieht  that  was  the  easiest 
Avay  to  dis])ose  of  a  very  lari^c  record. 

In  tliefull  of  1S;}S,  [  Imd  the  misfortune  to  have  two  hirms 
entirely  burned  over  by  jmiirio  iires  with  evervthinii- upon 
them.  On  one  was  <>-i-ain  enonoh  in  the  stack  to  have  paid 
all  my  debts,  and  more.      On  the  otlun-  was  Iv.w  vmavjli 


^, 


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84 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


to  have  wintered  a  liundred  lioad  of  cattlo.  In  October 
I  wont  down  to  Sanj^anion  count}'  Avlicre  I  jjurcliascd  about 
seventy-five  liead  of  cattlo,  and  was  drivinf^  tlieni  up  to  tlie 
liitter  fai'ni,  Aviien  early  one  niornin<^,  about  filteen  miles 
below  Ottawa,  I  mot  a  man  who  incjuired  my  name  and  then 
inl'ormed  me  that  my  riainliold  farm  had  been  l>ui'ned  ovei'. 
even  to  the  ox  yokes  and  other  farming  utensils,  and  then 
after  giving  me  a  few  minutes  time  to  digest  that,  he  told 
me  that  my  Du  Page  farm  had  Ijocm  burned  over  and  all  the 
grain  upon  it  consumed.  I  imnKMliately  em])loved  a  man  to 
herd  my  cattlo  on  the  prairie,  whei'o  they  were,  and  pushed 
on  for  Chicago,  Avhoro  my  family  was,  where  I  arrived  the 
next  forenoon.  After  remaining  one  di-.y  to  arrange  affairs 
hero,  I  monr.t'Ml  my  horse  to  look  aftm*  my  stock,  which  I 
found  \.  h^re  I  had  lo!t  them,  all  I'ight.  1  then  ]iushed  on 
about  : ,  e!;^:y  miles  further  to  Col.  Stvawn's,  to  make 
arrangemeius  with  him  to  winter  mv  cattle,  knowino-  that 
on  his  lar-g"'  faim  he  had  abundant  fodder  in  his  corn  fields 
with  whii.h  to  do  so. 

During  niy  solitary  rido  across  the  piairies  I  ]>icturcd  to 
myself  the  jileasure  he  would  experience  in  olTei'ing  to  winter 
my  cattle  at  a  very  low  figure,  and  the  ha])pinoss  it  would 
j>ivo  me  to  assure  him  that  I  should  charge  no  other  fee  in 
his  sTiit  with  ]>abb,  oxcei)ting  my  simi)le  expenses  to  Yan- 
dalia  to  argue  his  case  at  the  ensuing  term.  I  was  much 
disappointed  when  1  stated  my  case  to  him,  to  ol)serve  that 
he  was  determined  to  drive  as  hard  a  bargain  with  me  as 
possible.  AVinter  was  fast  approaching,  and  the  arrange- 
ment for  the  care  of  my  stock  must  be  made  immediately, 
and  he  alone  had  the  means  at  hand  for  cai'ing  for  them. 
As  1  was  in  his  power  I  made  the  best  terms  I  could,  l)ut 
was  careful  to  say  nothing  about  my  fee  in  his  case,  consol- 
ino-  mvsolf  with  the  reflection  that  I  was  now  absolved  from 
any  obligation  to  treat  him  very  leniently,  when  the  ques- 
tion of  foes  should  come  to  be  considered. 

Some  time  after  the  case  had  boon  decided  I  sent  him  a 
bill  for  one  thousand  dollars,  for  my  services  in  that  case. 


Clr.'UIT  SCENES. 


80 


IIo  ])a\(\  no  attontion  to  i+  f',i  some  months,  wlion  linallvlic 
came  up  to  se(;  mo  about  1.,  and  ])i'ot«'st('(l  that  my  fhafuf 
was  oxoroitant,  and  that  he  could  piHjve  that  when  at  his 
liouse  I  had  a<^reed  to  attend  to  tlie  case  1"oi'  lil'ty  (hdlars. 
i  then  told  him  that  1  had  no  d<»ul»t  that  he  could  ]>rove 
that  or  anythinj^  else  he  wanted  to  ])rove;  that  I  knew  him 
too  well  to  doubt  tiiat,  but  that  I  would  catch  him  at  it  as 
sui-e  as  he  lived. 

I  then  commenced  suit  airainst  him  at  Lacon,  and  tn 
])i'ove  the  valae  of  my  services  I  took  the  (K'|)(»sition  of  Mr. 
Peters,  when  we  were  attending  court  in  Kane  county. 
Peters  testilied  that  ho  had  be(Mi  counsel  on  the  othei*  side 
in  the  case,  and  that  the  case  had  been  vei'V  ably  ti'ied  on 
both  sides,  and  that  he  thought  a  thousan«l  dollars  a  very 
reasonable  fee  for  the  services  which  1  had  I'ondored  in  the 
case. 

In  the  meantime  I  had  received  notice  and  a  copy  of  inler- 
I'ogatories  to  take  the  deposition  of  some  man  in  Iowa, 
whom  I  had  no  recollection  of  ever  having  soon.  From  the 
interrogatories  it  was  manifest  that  he  intended  to  ])rove  by 
this  witness  that  ho  had  heard  mo  agree  with  (\)\.  Strawn  to 
take  that  case  through  from  beginning  to  end,  for  fifty 
dollars.  In  my  cross-iuterrogat'  ries,  1  sim])ly  asked  him  if 
ho  had  had  any  communication  with  ('ol.  iStrawn  about  his 
dejiosition  al)out  to  be  taken,  either  oral  or  in  writing,  and, 
if  the  former,  to  state  what  was  said  as  nearly  as  p<jssible. 
and  if  in  writing,  to  attach  the  original  communication  to  his 
deposition. 

When  I  sent  my  cross-interrogatories  to  the  ch'rk  I 
requested  him  to  lot  no  one  know  what  they  were. 

AVlion  the  next  t(M'm  of  the  court  was  opened  at  Lacon. 
Mr.  Purple  and  ]\[r.  Dickey  Volunteered  their  services  to  ti-y 
my  cause  for  me,  and  Mr.  Tetors  was  engaged  for  the  other 
side. 

The  practice  then  required  a  special  order  of  the  court  to 
open  de])ositions,  which  was  at  once  obtained.  AVhen  the 
defendant's  deposition  was  opened,  the  lirst  thing  to  attract 


nr 


86 


EARLY  BE^X•H  AND  BAR  OF  ILLL'^OIS. 


W'. 


our  attention  was  an  ori<;inal  lottor  in  Col,  Sti-av.n's  hand" 
Avi'itin^-,  i'roni  the  defendant  to  the  (h^ponent,  in  Avliieh  lie 
otlered  liim  five  dolhirs  if  lie  would  swear  to  the  statements 
follo\vin/4'.  Then  followed  al)Out  a  page  of  matter  written 
inthelirst  person,  to  which  the  witness  was  to  swear  for  the 
live  dollars,  stating  that  he  had  heard  a  contract  made 
between  Col.  Strawn  and  myself,  by  which  I  agretul  to  con- 
duct his  case  through  from  beginning  to  end, and  to  pay 
my  own  ex})cnses,  for  fifty  (hollars,  stating  many  collateral 
circumstances  to  increase  the  probability  of  his  story.  Then, 
turning  to  the  deposition,  we  found  that  he  had  sworn  to  the 
e.xact  words  of  the  letter  without  addition  or  diminution. 

Upon  tlie  trial,  ^Ir.  Petei's'  dej)osition  was  read  for  my 
side  by  J\Ir.  l*urple,  Avho  emphasized,  in  a  very  pungent 
manner,  the  statement  tluit  the  case  '"  was  very  ably  tried  on 
both  sides.*'  For  the  defense,  the  foreign  deposition  was 
read,  and  a  witness  was  called  to  the  stand,  who  swore  that 
he  was  present  when  the  bargain  was  made  as  stated  in  that 
deposition,  following  the  same  i)hraseologv,  scarcely  varying 
it  l)y  a  single  word.  (,)n  cross-examination  he  positively 
deni(Hl  ever  having  conversed  in  any  way  with  Col.  Strawii 
about  what  he  was  to  swear  to.  The  cross-examination  was 
what  might  have  been  expected  under  the  circumstances, 
l)ut  the  most  valuable  result  obtained  Avas  that  he  obsti- 
nately refused  to  vary  his  statements  from  the  formula  set 
forth  in  the  letter  of  instructions  to  the  foreign  Avitness.  I 
should  have  stated  tluit  the  deposition  Avas  not  read  in  evi- 
dence till  after  the  oral  testimony  had  been  given,  and 
probably  Peters  Avould  not  have  read  it  at  all  had  he  not 
felt  sure  that  Ave  would  have  done  so  by  the  leave  of  the 
court. 

The  summing  up  on  my  side  Avas  Avliat  might  have  been 
expected  from  two  such  able  lawyers  as  Dickey  and  Pur})lo, 
the  latter  being  especially  caustic  in  some  portions  of  his 
address.  Peters,  on  his  side,  of  course,  could  not  deny  that 
tiie  services  Avere  Avorth  the  thousand  dollars,  as  stated  in 
his  deposition,  but  based  his  defense  solely  upon  the  special 


CIRCUIT  sc;enes. 


8; 


I'ontraet  rlniniod  to  have  hcon  proven.  Tlio  ti'ial  had  occu- 
)»ieil  th(^  wholo  day.  and  Jiid^o  Ford  adjoui'iicd  the  court 
until  evening  to  receive  the  v<M'dict.  WiuMi  at  the  (nening 
session  the;  jury  was  brou<;ht  in,  Col.  Straw n  was  seated 
close  to  the  jury  box  near  the  ui)|)«n' end.  AVhen  the  fore- 
man announced  a  verdict  of  seven  Inindi-ed  and  lil'ty  (h)llais 
for  the  plaintilF,  the  colonel  juni])ed  to  his  feet  and  strode 
(jut  in  front  of  the  jury,  remarking  as  he  went,  "Thank 
you,  g-entlemen,  a  vei'v  small  fee,  indeed;  only  al)out  a  half 
bushel  of  dollars."  After  harvest  I  was  told  that  la;  hatded 
in  his  wheat  with  a  foui'-horse  team,  which  he  di-ove  himself, 
and  wlumever  he  met  a  in'ighbor,  and  es})ecially  if  he  lia]>- 
jM'iied  to  1)(>  one  of  the  jury,  in  a  sarcastic  tone  he  would 
exclaim,  "That  load  of  wheat  you  see  is  part  of  lawyer 
( "aton's  fee."' 

Mad  he  Icindly  assisted  mo  and  shown  some  sym])athy  in 
my  distrv'ss.  no  charge  would  have  ever  been  made  him  for 
those  services. 

There  is  a  moral  in  this  story,  Init  whether  lie  ever  prof- 
ited by  it  or  appreciated  it  1  do  not  know. 

The  AV'auhub  case  may  be  soon  disjjosed  of.  I  vrent  to 
Lacon  and  took  the  deposition  of  the  neighbors,  who  knew 
the  facts  of  the  case.  It  Avas  then  that  1  iirst  met  the  old 
Jady,  who  was  lying  in  the  bed  she  ha(loccui)ie<l  ioi"  so  many 
years.  She  was  an  inveterate  smoker,  and  <luring  my  visit 
she  was  constantly  employed  in  that  soothing  occupation. 
She  <ned  some  veal's  later  in  that  same  bed,  and,  as  I  uas 
informe<l,  with  the  i)ipe  in  her  mouth,  which  was  still  lighted, 
so  that  it  might  bo  truly  said  she  snu)ked  with  her  last 
breath. 

When  the  case  vras  ready  f(;r  hearing  I  a])j)lied  to  the 
court  for  an  order  for  a  feigned  issue  to  trytJK!  pi'in- 
cipal  fact  involved  in  the  case,  which  was  granted.  As 
was  my  duty,  I  prepared  the  ])lea(lings  according  to  the  old 
English  ])ractice,  which  was  adeclaraticni  in  the  case  of  John 
Doe  V.  Ivichard  Hoe,  that  a  wager  had  been  made;  betwec^ 
the  parties,  wherein  John  Doe  had  affirmed  that  the  land, 


88 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


(loscrihiiif^it,  liiid  been  ]mrcliiisc(l  l)y  AViii.  AVaiiliul*,  of  the 
I'liitcd  States,  with  moncv  beloiioinn-  to  tho  sjiid  coiiiijhuii- 
jiiits  Jind  d('f(Mi(hint,  naming  them,  in  e([ual  ])i'o|)ortions,  and 
the  sa'd  d(>t'en(hint,  liichard  Koe,  averred  that  th(^  said  hiiid 
Avas  piirehased  with  money  hel(nigiii<^  to  the  said  Win.  AVau- 
hnh,  excinsively,  and  in  liis  own  right,  \vheren[)()n  the  said 
l)ai'ties  Juul  made  a  wa,^er,  wherehy  the  said  piaintiU'  hiid 
agreed  to  pay  the  said  defend.mt  a  certain  sum  <)t'  ni<»ney, 
naming  some  sum,  in  Ciise  the  said  purchase  imniey  did  noi 
behmg  to  the  comphiinantsand  defendant,  naming  thein,  in 
e(|ual  ))roj)()rti(ms,  liut  that  the  said  purchase  money  belonged 
excUisively  and  in  liis  own  riglit  to  the  said  AVilliam  AVau- 
hub,  and  the  s;iid  defendant,  liichard  Roe,  tlien  and  thero 
])roinised  and  agreed  to  ])ay  the  said  ])hiintitf  a  li!;e  sum  of 
money,  if  thestiid  ])urchaso  money  did  not  behtiig  tothesaid 
AVm.  AV'auhub  exclusively,  and  in  his  own  right,  but  did 
belong  to  the  ]);irties  in  the  chancery  suit,  naming  them,  in 
e(|ual  ]n'op(n*tions.  The  declaration  then  averred  that  the 
facts  were  as  the  ]ilaintilf  had  declared  tliei  to  l)e,  and  were 
not  as  the  defendant  had  declared  them  to  be,  Avhereliy  the 
said  defendant  had  become  indebted  totlie  said  plaintilf  in  die 
said  sum  of  money,  naming  it,  which  he  had  often  been 
requested  to  pay,  but  that  he  had  neglected  and  refused  to 
do  so,  whereby  an  action  had  accrued,  etc. 

I  also  ])repared  a  plea,  admitting  the  fact  of  the  wager  as 
stated,  but  denying  the  facts  as  stated  in  the  declaration, 
which  would  entitle  the  plaintilf  to  the  iiKjney  claimed  in 
the  declaration  and  added  the  .^Imifdci'.  The  next  morning 
I  i)resented  these  ])1  catlings  to  j\[r,  Peters,  and  askeil  him  to 
sign  the  })lea  as  attorney  for  the  defendant,  which  lie  at 
first  declined  to  do,  stating  that  this  was  a  ])iMceediiig  which 
lie  did  not  quite  nnderstand,  and  that  he  did  not  propose  to 
assume  any  such  responsibility.  Judge  Foj'd,  however,  ad- 
vised him  to  sign  the  plea,  as  it  Avas  ti  mere  matter  of  form, 
to  got  the  issue  presented  bv  the  jilcadings  before  the  jury, 
and  likened  it  to  the  fictitious  pleadings  in  an  action  of  eject- 
nicnt.  where  the  leaso',  entry  tiud  ouijter  had  to  be  averred 


CIUCCIT  SCENES. 


cSJ.» 


and  a(lniitt(Ml  in  oi'dcr  to  ])rcsont  the  rcfil  issue  in  tlic  case. 
altlion;^"li  such  facts  liad  never  i'(>ally  existed.  Mr.  Peters 
then  sillied  the  ph'a.  and  the  jury  was  called,  who  lound  a 
verdict  in  favor  of  the  |)laintiir,  whereupon  the  court  entere<l 
a  decree  in  my  favor  for  the  e.xeLJUtiun  of  tlie  resulting- 
trust. 

As  AVilliani  AVaidiuh  was  shown  to  be  beyond  the  juris- 
diction of  the  court,  I  had  Jesse  C.  Smith  appointed  a  com- 
missioner to  execute  the  (l(N?d  in  his  name,  and,  as  I  had  all 
the  papei's  pi'epared  bi'foreliand,  this  was  done  directly. 
])i'omptly  acknowleil^'ed  and  IIIimI  with  the  recorder,  which 
was  reported  to  the  court,  and  the  report  ap[)roved. 

Hitherto  the  ])ractice  had  been,  in  such  cases,  to  treat  the 
decree  as  an  abs(jlute  conveyance.  This  was  more  com- 
monly the  case  in  suits  for  ])artitions  of  lands,  Avliere  the 
coidirmation  of  the  report  of  tlie  commissioners  was  deemed 
sulficient  conveyance  to  the  several  ]):u'ties,  of  the  parts 
assi<xned  them.  In  this  way,  ^^rs.  Ju;lo'o  I>reL'se  held  title 
to  her  share  of  the  lari^^e  estate  of  her  father,  of  which  she 
had  conveyed  many  tracts  with  warranty  deeds,  about  which 
no  (juestion  had  ever  been  raised,  until  a  few  years  a;^(>. 
when  Jud''-o  Snvder,  of  the  l>L41eville  Circuit,  decided  that 
t!ie  fee  had  not  passed  to  her  by  the  confirmation  of  the 
report  of  the  commissioners,  thus  leaving  her  liable  upon  all 
of  the  warranties  she  had  m  ule.  This  decision  very  much 
disturbed  the  judge,  and  he  wrote  me  for  my  oi)inion  as  to 
its  correctness.  I  answered  h'm  that  in  my  opinion  it  was 
the  law,  but  possibly  a  remedy  might  be  fcmnd,  yet,  and  at 
his  request  I  met  him  in  ]\[ount  Yernon,  where  the  Su[)reme 
Court  was  in  session.  The  partition  had  taken  place  about 
forty  years  betVn'e;  and  he  could  hardly  believe  that  such  dis- 
tinguished lawyers  as  David  J.  Baker  and  (.'olonel  Snyder. 
Avho  were  two  of  the  commissioners  who  made  the  ])artition, 
could  have  omitted  anything  to  make  their  work  com[)lete. 

I  advised  him  that  the  matter  was  still  biji'ri^  and  now 
]>ending  before  the  court,  and  prepared  a  ])etition  to  be  pre- 
sented to  that  court  to  have  the  suit  redocketed,  and  a  com- 


90 


EAIJLY  BENCH  AND  BAR  OF  ILLINOIS. 


iiiissioiKM'  appointed  to  execute  tlie  neccssai'v  coiivoyiuiovs. 
This,  he  inloi'ined  iiic,  avjis  aftei'ward  done,  and  tlais  was  lie 
relieN'ed  of  a  }xront  embai'rassiiient;. 

I  lia\'e  th(>iii;ht  that  this  sk(?tch  of  our  juilieial  history 
might  be  worth  the  space  it  occupies. 


Vli. 


liK-FOK^rATION  OF  THE  SUPKKME  COliri' KI-KOTIOX  OF  NEW  JUDGE 

ELECTED  AS  JUDGE  OF  SUl'UEME  COUKT. 


After  Gov.  Carlin  was  inauguratcMl  lie  made  an  order 
I'euioving  the  secrtitary  of  state,  and  a]>pointing  another  in 
ids  stead.  His  right  to  do  tliis  was  denied  by  the  incum- 
biMit,  and  he  refused  to  deliver  up  the  olllce.  A  pi'opercase 
was  made,  and  the  question  was  presented  to  the  Su])reme 
Court  for  its  decision.  The  court  then  consisted  of  AVilson, 
J.ockwood  and  l>rown,  wliigs,  and  Smith,  a  democrat.  The 
court,  by  the  three  first  named  justices,  decided  that  the 
g-overnor  had  no  power  to  make  the  change,  to  which  ISmith, 
justice,  dissented. 

AVhen  the  Legislature  assembled  in  December,  1S.30,  it 
was  found  to  contain  a  large  majority  in  each  house  of 
democrats,  Avlien  this  decision  assumed  a  political  aspect.. 
As  the  judges  of  that  court  were  elected  for  life  or  during 
good  liehavior,  there  was  no  mode  of  re-forming  that  court, 
as  it  was  called,  but  by  increasing  its  members;  so  a  bill  was 
])assed  adding  five  more  members  to  the  court,  who  were 
to  be  elected  by  joint  ballot  of  the  General  Assembly.  To 
fill  these  ]ilaces  Breese,  Douglas,  Ford,  Scates  and  Treat 
were  elected.  A  bill  was  also  j)assed  requiring  the  judges 
of  the  Supreme  Court  to  hold  the  Circuit  Courts  in  the  nine 
circuits  into  which  the  State  was  divided,  and  assigning  a 
])articular  circuit  to  each. 

This  measure  was  strenuously  opposed  b}'  the  old  judges, 
who  did  not  relish  the  idea  of  being  again  required  to  do 
circuit  dutv. 


cmcuiT  sci:.\i:s. 


in 


Ford  was  {issi(>^no(l  to  the  niiitli  cii-ciiit.  in  scvcimI  coimti.'s 
of  wliii'h  I  liad  kept  n[}  u\y  pnictico  (liiriiiu' my  ivhidciicc  <m 
my  Plainht'ld  i'unii. 

Ilavino-  I'ccoveivd  my  health,  in  the  s|)i'iiii,M)f   Isti'  I  re- 
moved into  Kendall   coimty,    preparatoi-y  to   retnrnin,«>'  to 
Chicago  to  rosnnio  my  pi-aoticc  here,  after  the  close  ol"  the 
s|)ring courts  in  the  ninth  circuit.     Whileattondino-  the  court 
at  (ieneva,  which  was  the  last  court  ot"  the  sprino- circuit. 
-Iiid'^'e  Ford  received  a  comuuinication  from  the  Democratic 
State  Committee  that  they  had  nominated  him  a  candidate 
for  <,rovernor  at  the  ensuing'  Aunust  election  in  jilace  of  ("oj. 
Snyder,  who  had  been  ju'evioiisly  iiomiiuited  by  tln^  State 
Convention  and  had  lately  died,     Hefore  we  sepai-ated  dud^c 
Foi-d  privately  told  me  not  to  return   to  (1iica;-o.  as  1  hiul 
cont(>mplated,  but   to  remain   in  Kendall  county;  that   he 
shoidd  be  elected  governor,  and   that   the  n(,venior  would 
ajipoint  irio  his  successor,  and  that  he  thought  me  the  best 
i|uali(ied  of  any  member  of  the  bar  in  the  circuit.     I  coiise- 
(]uently  reiriained  there  till  after  the  August  election,  at 
which  Governor  Ford  was  elected  by  a  large  majority.     That 
very  night  I  started  for  Quincy,  Avliere  Governor  Carlin  re- 
sided, when  I  presented  myself  l)efore  the  governor  as  a 
candidate  for  the  vacant  judgeship.     He  received  me  verv 
cordially,  hut  as  he  liad  not  yet  received  the  resignation  ()f 
Judge  Ford,  there   Avas  no  vacancy  to  be  filled;    he   said 
lie  should  be  happy  to  see  me  again,  after  he  had  receive<l 
Ford's  resignation.     He  gave  me  r,o  other  assuranc(^  than 
this  that  my  application  should  be  favorably  considered,  but 
I  accepted  this  invitation  as  a  favorj.blo  omen  and  returned 
to  Lisbon,  where  my  family  then   was.     Probably  a  week 
later  I  again  i)resented  myself  before  Governor  Carlin,  Avho 
again  received  me  very  cordially,  and  at  once  informed  me 
that  he  had  concluded  to  appoint  me  to  the  vacancy  created 
by  Ford's  resignation,  and  Avrote  out  the  api^ointment,  Avith 
a  direction  to  the  secretary  o:'  state  to  issue  my  commission, 
he  ha\'ing  blanks  in  his  office  signed  by  the goAernor.     With 
these  documents  I  returned  tlirough  Springfield  and  received 


92 


EAULY  HKNCII  AND  BAR  OF  ILLINOIS. 


my  roimiiissioM  l"r(»iii  Mi*.  Ti'iiml)iill,  who  was  then  sccrotarv 
(tf  state,  wlicii  I  wnit  aci'oss  the  hall  ami  was  sworn  into 
ollicc  by  .lii(I<;('  'I'rrr.t.  This  coinniissictn  couM  only  extend 
to  tin-  flosc  of  tin'  s(v;sion  of  the  n<'Xt  (Jcncral  Asscnihly, 
which  wonld  l»y  joint  ballot  ch'ct  a  sncccs!  orto  ilud^c  I"'»»rd. 
When  tJH'  election  occuri'ed  .lolm  M.  Kohinson.  late  the 
I'nited  States  Seiiator  Ironi  this  State,  v»as  elect<'d.  and  at 
tli(>  end  ol'  the  tei'iii  I  returned  Jionie  snpjtosing  that  my 
judicial  career  was  at  an  end. 

Althou;4'li  Robinson  had  bi«on  an  active  ])olitician.  ho  wasa 
fairly  <4(>od  lawyiM',  and  j)ossessed  a<^ood(U>al  of  what  he  him- 
self called  hoi'so  sense.  lie  hehl  his  lirst  court  iit  J.acon,  then 
wentu[>to  IIenne])in  whei'c^  h(5  lield  thecircuit.i'ud  thence  to 
Ottawa,  whei'e  Ik;  opened  tli(5  court  a  week  later.  He  was 
a  man  considerably  advanced  in  years,  with  a  constitution 
somewhat  imi)aired,  and  on  tiio  second  (hiy  of  tlie  term 
c<»mi)Iained  of  illness,  and  a  few  days  later  took  to  his  bed, 
where  he  died  two  or  thi'eo  wet'ks  later. 

So  soon  as  (iovernor  Ford  was  informed  of  his  d(\'ith,  he 
"wrote  out  a  conunission  entire  with  his  own  hand,  which  he 
sent  me.  This  Avas  my  second  commission  as  jud^'eof  the 
Sui)reme  Court  of  Illinois.  1  now  had  two  years  to  serve 
ujMjn  the  bench  uefore  the  Legislature  would  be  called  upon 
to  elect  a  successor  to  Judg'o  Itobinson.  IJefore  that  oc- 
curred I  had  an  opportunity  of  f^ottin;^  well  aoijuiunted 
throughout  the  circuit,  and,  as  my  friends  thought,  demon- 
strated mv  fitness  for  the  high  olMce  Avliich  1  then  illled, 
notwithstanding  my  lack  of  years,  and  ^vas  nominated 
unanimously  by  the  party  to  which  I  behmged,  which  was 
hu'gely  in  the  ascendency  in  the  General  Assembly. 

The  o])posite  party  nominated  David  Davis,  Avho  subse- 
quently became  eminent  as  a  jurist,  when  a  member  of  the 
Su])reme  Court  of  the  United  States.  Ilis  nomination, 
however,  Avas  Avell  understood  to  be  merely  com])limentary, 
by  reason  of  the  numerical  strength  of  my  i)arty  friends. 
AV'hen  I  Avas  elected  I  received  my  third  commission  as  a 
justice  of  the  Supreme  Court.     This  avojs  for  life  or  during 


' 


•  ■ 

Jr^ 

.  .  i 

Mk                 fllilliii.v 

^^pi 

' 

(■ 

DAVID    DAVIS, 


CIRCUIT  SCENES. 


V>:] 


n-doil  l);>li;ivior,  acco/din;^-  to  the  provisions  of  t])o  const  it  ii- 
tioii  then  in  forc*«\ 

AVhon  the  Constitution  of  184s  was  aflo])te(l,  it  abolished 
the  Supreme  Court  ol'  nine  judges,  and  created  a  new 
Supreme  Court  of  three  judges,  Avith  only  a]ipellate  jurisdic- 
tion, exce])t  in  a  few  specilied  cases,  and  provided  they  should 
bo  respi^ctively  elected  hy  the  pc'ojjle  in  each  of  the  three 
•••rand  divisi(.ns  into  which  the  State  was  divid(-(l.  For  this 
court,  Treat,  Trumbull  and  niy;;(>lt  were  elected,  and  tluMi  I 
received  my  fourth  cominission  as  jud,o-e  of  the  Supreme 
Court.  We  organized  the  new  c-ourt  at  Afount  Vernon,  in 
I)eceml)er,  I818.  The  constitution  provided  that  we  should 
cast  lots  at  that  term,  as  to  wiiich  should  hold  the  olMce 
for  nine  yenrs,  which  for  six  years,  and  Avhich  for  three 
years.  This  we  did  very  (pr.etly  and  by  ourscdves  in  our 
own  room.  Treat  drew  the  longest  straw,  and  so  became 
chief  justice  of  the  court;  1  drew  the  second  and  Trumbull 
the  third.  Before  Trumbiiirs  term  ex])ired  he  was  elected 
a  senator  to  Congress,  and  Scates  was  elected  to  till  his 
vacancy.  Befoi-e  my  term  of  six  years  expired  Treat  Avas 
appointed  United  States  J)istrict  Judge  for  the  Southern 
District  of  Illinois,  when  I.  became  chief  justice  for  nearlv 
six  m<mths,  or  from  January  to  June,  inclusive 

During  the  last  six  months,  when  I  held  ollice  under  thar 
fourth  commission,  it  was  by  a  rather  doubtful  tenure.  The 
constitution  provided  that  our  terms  should  commence  on 
the  first  Afonday  ol  December,  1848,  and  should  continue 
for  three,  six  and  nine  years  respectively,  and  ])rovided  that 
the  elections  for  our  successors  should  respectively  be  held 
in  the  June  following,  and  made  no  ])rovision  for  the  inter- 
vening six  mcmths.  To  meet  this  emergency,  the  (icneral 
Asse-nblv  passed  a  law  providing  that  we  should  continue 
in  oifice  till  our  successors  were  elected  and  qualilied. 
Whatever  might  be  said  of  the  constitutionality  of  this  act, 
it  Avas  thought  to  give  color  of  office  sufficient  to  make  us 
officers  f/ejaefo,  so  as  to  make  our  acts  as  legal  and  bindiiu 
as  acts  of  officers  dejui'e  would  bo. 


0 


94 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


I: 


I!     !' 


At  tlio  cx])iriitioii  of  my  term  thus  oxtendod,  I  "svasoloctcd 
to  succeed  myself  for  the  nine  yejirs  term,  in  June,  '\K>'k 
At  the  same  time,  Jud^e  Skinner  Avas  elected  to  liil  the 
vacancy  caused  l>y  the  resignation  of  Judfj:e  Treat,  who  was 
a))])ointe(l  United  States  District  Judge,  when  Scates,  who 
liad  been  elected  in  tiie  Third  Grand  Division  to  succe<'d 
Judoe  Trundnill,  became  chief  justice  by  virtue  of  his  hold- 
ing  tiie  oldest  commission. 

As  before  stated,  at  the  June  election  in  185.%  l)oth 
Skinner  and  myself  were  elected,  and  on  this  I  received  my 
fifth  commission  as  jud^^e  of  the  Supreme  Court  of  Illinois. 

As  the  constitution  provided  that  the  judge  holding  the 
oldest,  commission  should  be  chief  justice,  the  governor,  per- 
ceiving that  embarnissment  might  arise  from  the  omission 
of  the  constitution  to  determine  who  should  become  chief 
justice  when  two  of  the  judges  should  hold  commissions 
bearing  the  same  date,  issued  my  commission  one  day 
earlier  than  that  to  Skinner.  AVhen  Ave  met  at  ]\rount 
Vernon  for  the  November  term,  1857,  of  the  court.  Skinner 
claimed  that  the  governor  had  no  right  thus  to  determine 
who  should  be  chief  justice,  and  that  a  fair  way  to  settle 
the  question  was  by  casting  lots  for  it.  Of  course  the 
decision  of  this  question  fell  upon  Judge  Breese,  who  had 
been  elected  to  succeed  Judge  Scates  in  June,  1S5T.  Judge 
IJreese.  decided  that  as  I  actually  held  the  oldest  commission, 
the  constitution  declared  that  I  should  be  the  chief  justice, 
and  then  I  took  my  seat  as  presiding  otiicer  of  tliat  court 
for  the  second  time,  and  held  that  office  until  I  resigned,  in 
18(i4. 

This  short  historical  sketch  shows  how  two  embarrassinii- 
questions  were  dis}>osed  of  during  the  time  embraced  in  it. 
I  thought  it  proper  to  recall  them  here.  The  first  Avas,  how 
the  hiatus  was  bridged  over  between  the  expiration  of  my 
six  years  commission,  which  occurred  in  December,  1854, 
and  the  election  of  niA'  successor  in  June,  1855;  and  the  other 
was  as  to  how  I  liecame  chief  justice,  after  the  resignation 
of  Chief  Justice  Scates,  when  both  Skinner  and  myself  were 


ll 


LYMAN   TRUMBULL. 


CIRCUIT  SCENES. 


95 


eloctod  at  tlio  same  time  in  1857.  It  also  sliows  how  I  he- 
came  Circuit  Jiul<4e  for  the  ISinth  Circuit,  from  August,  184:i, 
to  Decemher,  184s,  with  the  exception  of  ahcmt  two  mouths. 
During  that  time  some  interesting  circuit  scenes  occurred 
"which  I  mav  flive  hereafter. 


VIII. 


LYNCH    LAW — rUNISUMKNT   OF   TIIK    OFFENDERS. 


Two  years  before  I  came  to  the  Supreme  Bench,  T  liad 
been  called  to  Ogle  county,  which  was  in  the  ninth  circuit, 
to  prosecute  an  action  on  a  note  of  hand,  which  had  l)een 
given  to  a  particular  friend  of  mine,  for  an  im[)rovement 
and  chum  on  the  public  land<^.  As  the  lands  in  that  part  of 
the  State  had  not  yet  been  hrought  into  market,  claim  titk'S 
Avere  the  only  ones  known  in  that  region,  and  the  couj'tsand 
lawyers  had,  by  a  sort  of  universal  consent,  adopted  and  ad- 
hered to  rules  adapted  to  that  class  of  titles,  and  we  acted 
npon  them  with  as  much  assurance  as  if  they  had  been 
adopted  by  the  Legislature,  or  were  to  be  found  in  the  books 
of  the  common  law.  Well,  in  this  case  a  defense  was  set  up 
that  the  payee  of  the  note  had  not  a  good  title  to  the  claim 
for  which  it  Avas  given,  and  as  my  client  had  left  the  county 
after  he  had  sold  his  claim,  the  witnesses  managed  to  throw 
sufficient  doubt  over  his  right  to  induce  a  jury  of  the  neigh- 
borliood  to  find  a  verdict  for  the  defendant;  but  I  made  a 
stubborn  fight  in  an  up-hill  case,  and  was  soon  engaged  in 
several  ether  cases  then  pending,  and  in  some  whicli  were 
to  be  tried  at  the  next  term  of  the  court,  so  I  was  fairly 
engaged  in  pra(;tice  in  that  county,  although  Avhen  I  went 
there  first  I  only  expocted  to  try  tlie  particular  caso  which 
called  me  there. 

A  year  later  I  -was  retained  in  the  most  important  case, 
nominally  at  least,  in  which  I  Avas  ever  engaged.  Tliat  was 
to  defend  one  hundred  and  twelve  men  charged  with  the 
crime  of  murder.     For  some  years  before,  there  Avas  a  sort 


0(3 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


■  ; 


■ti 

'1 


oi  jin  ()r<i-;u!i;'-o(l  hand  of  criminuls,  prinri pally  on*jaf»'{>(l  in 
horse  st;  alin<^  and  countorroitinf^-,  but  who  on  occasions  did 
not  hesitate  toconiniit  murder.  They  became  bohlanddeH- 
ant.  Tliey  were;  \v«'ll  known  throu^^hout  the  community, 
and  had  many  synipathi/;M's,  who,  in  oi'der  to  turn  suspicion 
I'roni  tliemst^ves,  roundly  denounc(Ml  th(>m  when  in  certain 
circles;  inde;\l,  they  wow.  so  well  or<4'ani/.ed  an<l  bold,  an<l 
had  so  many  sympnthiz(>rs,  who  did  not  profess  to  ')e  of 
them,  that  it  was  im])o:isible  t()])unish  them  even  u])()n  the 
cle:irest  proof  of  guilt.  The  jail  was  broken  o])en  and 
burned  to  liberate  some  of  the  gan<»'  who  were  confined  in 
it.  and  some  of  their  sympathizers  would  always  manage  to 
g-et  on  the  jury,  so  that  a  conviction  became  impossible. 

I'ut  the  evil-iloiM's  consisted  of  but  a  snudl  j)ercentai;e  of 
the  [)oi)ulation  of  the  county,  a  o-reat  majority  of  whom 
Avere  as  excellent  men  as  could  be  found  in  any  (Hher  com- 
munity. They,  seeing  that  the  arm  of  the  Ir.w  was  too  short 
to  all'ord  them  protection  for  either  life  or  pioperty,  foiincd 
theniselves  into  a  sort  of  association  or  clul),  the  declai'cd 
objeot  of  which  was  to  rid  the  community  of  the  c  iminal 
class;  one  ('am])l)ell  was  elected  ca])tain  of  tliis  club,  which 
also  elected  several  subordinate  olllcers.  This  was  done  on 
Saturday,  and,  as  its  proceedings  were  oi)en  and  public,  they 
were  known  immediately  throu^-liout  the  county.  The  des- 
])tM'adoL's  saw  at  once  that  they  must  strike  sudi  a  terror 
throu<>-hout  the  comniunitv  as  to  disinteii'riite  the  members 
of  this  club  by  the  force  of  fear,  or  they  must  go  themselves. 
They  saw  it  was  an  issue  of  blood,  and  did  not  hesitate  to 
accept  it  at  once.  ]>y  arrangement  three  of  the  gang  were 
t(^  commence  operations  by  assassinating,  in  the  most  i)ublic 
manner,  Camj)b'jll,  the  leader  of  the  association,.and  accord- 
ingly, on  Sunday,  rode  up  to  his  cabin  in  broad  daylight, 
called  him  to  the  door  and  riddled  him  with  bullets. 

The  news  of  this  terrible  trawdv  was  known  throufr!.-.!. ' 
the  countv  bv  Mondav  morning;,  and  without  call  or  no!'     , 
the  uKMubers  of  the  club  assembled  at  their  ai)pointed  reiitlez- 
vous,  and  details  vrere  sent  out  to  arrest  and  bring  in  the 


CIRCUIT  SCENES. 


07 


I 

i 


numlcM'ors.  This  was  liiially  ao('()in])lisli('<l,  and  tlicv  were 
l)i'<)U<ilit  Ix'foi'o  tlio  asscnihlcd  club  in  a  ^rove  a  I'rw  inih's 
south  of  the  county  seat.  ThtM'o  a  court  was  oI■^^•l.ni/('ll.  con- 
sistiui^  of  a  jnil;:'('  and  jui'v,  all  of  whom  wvw  sworn  by  a 
justice  of  the  |)«^ac(?,  to  impartially  try  the  case  and  a,  ti-iic 
verdict  to  reiuler.  AVitnesses  wow  sworn  bet'ort^  this  t tribu- 
nal, Avho  Siiw  the  murder  committed,  and  who  ])ositiveiy 
identilied  the  [U'isoners  as  the  murderers.  I^iwy<'rshad  been 
apjiointed  t(»  prosecute  and  defend  tlu?  ])risoners  and  every 
form.'ility  was  observed  which  was  chai-acteristic  of  a  re<^'u- 
hu'ly  constituted  court  of  justice  established  by  law.  A 
verdict  of  guilty  was  returned,  and  a  sentence  ])assed  that 
all  should  be  shot  on  tlu;  s))ot.  A  com])any  Avas  detailed  to 
carry  the  sentence  into  execution,  which  was  done  at  the 
word  of  their  comnuindin<,^  otKcer. 

Tlis  prompt  proceedinf^  struck  such  a  terror  into  the  ci'im- 
inal  class,  that  the  most  notorious  of  them  tied  at  once,  with- 
out standi)!!^  on  the  onler  of  their  goin<^,  and  their  sympa- 
thizers were  dumb  with  t(MTor. 

As  every  membei'  of  the  club  who  was  present,  was  in 
the  eye  of  the  hiw  guilty  of  murder,  1  was  at  once  consulted 
us  to  the  wisest  coarse  to  pursue.  I  unhesitatint>ly  advised 
that  an  indictment  should  be  ])rocured  a«i^ainst  all  wlio  Avere 
present  at  the  execution,  feelini^  ])erfectly  assured  that  they 
could  be  ac(piittod  then,  while  a  chan<^^e  of  condition,  of  pop- 
ulation, and  of  ])ublic  sentiment  miiiht,  without  a  juduinent 
of  acquittal  standiuf,^  upcm  the  record.  <;ive  them  troul)l(>  at 
some  future  time.  Accordingly  an  indictment  was  ])re- 
sented  against  one  hundred  aiul  twelve  who  Avere  present 
at  the  trial  and  execution  of  the  culprits.  Of  course,  my 
consultations  had  been  Avith  only  a  fcAV  of  the  leadei's,  but 
noAV  it  was  necessary  to  have  them  all  together,  and  accord- 
ingly  AA^c  marched  out  onto  a  little  isolated  peak  in  the 
prairie,  and  I  had  them  formed  in  a  circle  around  me, 
Avhile  I  called  oN'er  a  list  of  tlie  defendants,  Avhen  all 
answered  to  their  names  except  four,  Avho  AA'ere  unavoidably 
absent.     Even  the  sheriff,  in  Avhose  nominal  custody  they 


98 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


,'■ 


wore,  was  convoniontlyjihsont,  and  no  one  bnt  the  prisoiuns 
und  uiysclf  were  within  two  hundred  yards  of  us.  I  was 
a.ssuri'd  that  no  one  of  them  had  boasted  of  the  tran.-actioii, 
or  in  any  way  admitted  that  he  was  present  at  thci  tiuK, 
and  I  saw  no  dithculty  in  tlio  Avay,  exee])t  as  to  tlie  four 
defendants  that  were  not  present,  in  whose  favor  a  jud<i,'nu'nt 
of  acquittal  was  as  necessary  as  to  the  otiiers;  but  this  was 
<^<)t  over  by  selectin<^-  four  of  the  party,  each  of  whom  was 
to  answer  for  one  of  the  absentees  when  his  nauu*  shouhl  be 
called  in  court  to  plead  to  the  indictment.  "When  all  of  tiie 
many  details  were  arranged  for  the  conduct  of  tlie  case,  we 
marched  back  to  the  court  house,  which  was  cleared  of  all 
others,  as  supposed,  and  when  my  numerous  clients  tiled  in 
they  Klled  the  little  courtroom  (juite  up  to  th(»  table  around 
which  the  lawyers  sat.  "While  the  court  was  waiting  for 
our  appearance  it  had  been  occupied  with  some  unimpor- 
tant business,  so  that  all  was  ready  to  proceed  with  the  case 
when  we  arrived.  The  case  was  at  once  called,  and  the 
clerk  proceeded  to  call  the  prisoners,  who  promptly  answered 
to  their  names.  I  confess  I  felt  a  little  anxiety  whenever 
the  name  of  an  absentee  was  called,  but  the  ])roxies  all 
answet'd  promi)tly  and  without  another  word,  until  the  last 
answer  was  made,  when  some  one  near  the  door  hallooed 
out  in  a  rather  tremulous  voice,  "  Tliat  ain't  him." 

This  caused  a  flutter  of  excitement  for  a  moment,  and  the 
judge  directed  that  name  to  be  called  again,  when  the  proxy, 
who  was  standing  away  back  in  the  crowd,  again  respomled 
for  his  principal,  and  no  one  could  tell  who  had  interrupted 
the  proceedings  in  the  manner  stated.  The  clerk  proceeded 
with  the  call  of  his  })risoners,  and  all  were  declared  to  l)e 
present,  and  I  entered  a  plea  of  not  guilty  for  the  whole 
lot,  when  the  jury  was  called.  Of  course,  with  the  number 
of  challenges  which  we  had,  I  could  select  a  jury  to  suit 
mvself,  but  I  had  occasion  to  use  verv  few  cliallenges.  The 
entire  panel  was  of  exceptionally  good  men,  and  Ave  accepted 
the  most  prominent  of  these,  Avhile  the  state's  attorney  made 
very  few  challenges.     He  then  proceeded  with  his  testimony 


('IR(;UIT  SCKNES. 


*)!) 


Imt  nttorly  failed  to  provo  that  any  person  liad  Immmi  Uillcd. 
imich  l«\ss  that  any  <>f  tlic  pi-isoiuM's  liad  taken  any  jiai't  in 
killini:^  anyhody,  Th(^  truth  was,  that  no  one  was  pt-esent 
at  the  trial  and  execution  hut  the  defendants,  and  no  one 
could  bo  found  who  ha<l  lieai'<l  any  one  of  them  say  a  word 
about  it.  All  thc!  witn(^ss(^s  had  heard  runioi's,  with  which 
the  whole  atnios|)here  was  tilled  and  had  been  ever  since 
the  event  hai)i)ened,  but  of  course,  these  wi<lely  dilTered 
fi'oin  (»ach  otluM',  and  some  of  thein  were  wildly  oxtrava- 
,£^ant,  but  this  was  not  lei^'al  testimony.  I  did  not  object  to 
them,  because  I  wished  to  demonstrate  by  their  conti'adict- 
ory  character  how  unreliable  mere  rumors  ai'c.  [  called  no 
witnesses,  no  aro-ument  was  made  to  the  jury  on  eithe!'  side, 
and  I  asked  the  court  to  instruct  the  juiy  that  mere  rumoi's 
were  not  evidence,  which,  of  course,  he  did.  and  t}xi)laiiUMl 
the  law  in  his  own  way  as  to  what  evidence  was  necessary 
to  authorize  a  conviction.  The  jury  were  absent  but  a  short 
time,  when  they  returned  with  a  verdict  of  ac(]uittal,  npon 
Avhich  judgment  was  entered,  and  thus  ended  thateeLbrated 
case. 

There  were  in  the  town  at  the  time  quite  a  number  wlio 
sympathized  with  the  ])rosecuti(m,  every  one  of  wiiom  wei-e 
well  known,  and  some  were  allowed  to  manifest  their  feel- 
ings, but  this  was  done  more  by  looks  and  shrugs  than  by 
Avords,  and  very  few  remained  in  the  county  long  after  tlu^se 
events  transpired.  Many  of  my  then  clients  have  filled 
honorable  public  positions,  in  which  they  have  acquittiMl 
themselves  in  the  most  useful  and  honorable  way,  and  all, 
so  far  as  I  have  ever  learned,  have  deserved  and  have 
received  the  respect  of  their  fellow-men. 


IX. 


INCIDENTS  OF    TRIALS. 


"Wlien  I  came  to  the  bench  of  the  Circuit  Court  of  the 
Xinth  Circuit  crime  was  scarcely  more  fre(]uent  in  Ogle 


lot) 


EARLY  HEN'CII  AND  HMi  OF  ILLINOIS. 


V 


»  I 


coiiiity  tliMM  in  tlic  otlwr  countii'S,  wlici-c^  h'ss  striiif^'ciit 
iiiciisurcs  liavr  Ihm'ii  iicci'ssiiry  to  cliri-k-  its  pci'iictraiioii. 
Imlccil,  no  ti'()ul)l('  existed  in  the  enloiTenient  ol"  tlie  law  in 
the  proper  and  h'/^al  way.  irn(h)nbt(Mlly  there  were  many 
still  left  to  syni|)athi/e  with  those  who  ha<l  departed,  and 
some  were  still  left  who  wore  more  than  sympathizers,  l>nt 
all  wore  known  and  watched.  UoweNM-r,  as  time  Avent  on, 
tc  iie  assnmed  a  bohlei'  tone  tluui  otiu-rs,  and  occasionally  a 
horse  was  s[)irited  away. 

Mr.  Fridley  had  been  olect;Ml  state's  attornc^v  for  the 
ninth  circnit  at  the  session  of  ls-!2  .''».  lie  found  afl'airs 
in  O^^'lo  county  rather  qniot  and  orderly,  with  jurors  care- 
fully selected  from  umon^-  tlu^  best  citizens,  and  no  unusual 
number  of  criminal  |)rosecutions. 

At  one  term  ho  found  a  man  l>y  tiio  name  of  I)iMd<ros  in 
the  jail  on  a  char,'4'o  of  horse  stealin/.^'.  jn'ow,  J]rid,i;'es  ha<l 
an  imsaA'ory  reputation,  and  luul  for  a  ]on<i'  time  l)een 
bi'lievod  to  be  more  than  a  sympathizer  with  the  ci'iminal 
class.  If  he  had  fled  from  the  county  after  the  execution  of 
the  murderers  of  Cam])bell,  he  had  returned  with  his  family, 
aiid  Avas  ostensibly  engagunl  in  farming-.  Fridley  had,  with 
his  usuiil  industry  and  })erse  vera  nee,  gathered  up  all  the  evi- 
dence attainal>le,  and  made  a  case  before  the  grand  jury 
which  Avould  insure  a  conviction  on  the  trial,  and  this  be- 
came so  well  understood  that  his  counsel,  Mr.  Peters, 
advised  him  to  i)lead  guilty,  preferi'ing  to  trust  the  court  to 
determine  the  measure  of  the  punishment,  rather  than  to 
leave  that  to  an  Ogle  county  jury. 

I  sentenced  him  to  seven  years  in  the  ]ienitentiarv,  which 
was  more  severe  than  Mr.  Fetors  had  ex])ected,  and  which 
many  of  his  outside  friends  charactoj'ized  as  outrageous,  and 
even  threats  Avere  floating  about  against  us;  but  Ave  paid 
little  attention  to  these,  feeling  confident  that  the  lesson  of 
only  tAvo  or  three  years  before  Avas  still  fresh  in  the  memo- 
ries of  the  evil-doers,  and  that  theyAvould  not  again  commit 
an  outrage  Avhich  might  raise  a  greater  storm  of  indigna- 


11 


BURTON    C.    COOK. 


cihM  rrr  .s(  knks. 


101 


tioi)  tliiui  own  lli(>  lirst   iiiid  (loiic.  iind  wliidi  niiulit   iimiv 
iiiiit«'i'i;illy  (It'crt'iisc  the  |M»|»iiliitioM  of  the  cniiiity. 

At  the  session  of  iNfl  .">,  Ml*.  I.  ( '.  (noU  li:i(l  Ik-cm  elected 
to  succeed  Ml".  Fi'idley  as  state's  jiltoi'Mcv,  jilld  |>l'oved 
himself  iis  iiei'sevcriiiii'  !ii)d  elllcient  ill  the  pi'oseciit ion  of 
crimiiiids  of  all  «^i'adcs  as  the  fonner  had  lieeii.  Indeed,  he 
liecaine  as  olinoxioiis  to  the  criminal  class  l»y  I  he  enei'reiic 
mamn'i' in  which  lie  dischai';j:ed  liisj  duties,  ;is  1  Ii:id  liy  the 
senteiR'i!  of  i'l'idu'i's  and  l»y  my  (ttlier  (»llicial  acts  in  the 
discoiifa^einenl  of  ciMine,  and  threats  a^^ainst  iis  both  he 
came  more  pronounced:  Mi.  Cottk  r«'ceive(l  some  anonymous 
letters  of  a  threatcnini;'  character,  hut  we  heeded  them 
little,  feelinu;  assured  that  it"  the  criiiiinal  classes  really 
meant  injury  they  would  not  put  us  on  oiir^'iiai'd  l>y  lettiiii;' 
us  know  it.  and  also  feelin;;'  assured  that  a  loi'iner  less(»n  had 
n<»t  heeii  for;;'otten.  When  the  term  closed  Mr.  Cook  and 
myself  started  in  my  l)UiiL;y  i'o!  Ottawa,  onr  home.  The 
road  led  throu<j,h  II  ickory  (i  rove,  where  there  were  two 
settlers,  Mr.  nartholemew  and  Mr.  F!a,n'.  I  !'•'  former 
entertained  travelers  in  his  log  cabin,  and  wo  often  stopped 
there  both  before  and  after. 

Wo  arrived  there  all  I'ight  in  tinn^  for  su])])er.  Inul  mir 
horse  stabled  and  \'vA,  and  pre])ai'ed  to  spend  the  night:  but 
when  the  n<'arly  full  moon  came  uj),  which  i-endered  every 
thing  almost  as  light  as  day,  avo  concluded  to  hitch  U|»  and 
cross  the  sixteen-mile  ])i'airio  to  Taw  I*aw  (trove,  'i'lieie 
was  not  a  single  settlement  in  the  whole  distance,  but  the 
trail  was  fairlv  beaten  and  the  road  e-ood.  "\Ve  i<»y'<'('d  aloim- 
leisurely  talking  freipiently  of  the  threats  we  liad  hoard,  but 
entertaining  no  fear  of  their  execution,  till  wo  reached  I^liim 
Thicket,  six  miles  on  onr  way.  This  was  a  little  patch  of 
but  a  fow  acres  of  wild  plum  tre(>s  and  very  few  thick  under- 
brush, and  containinir  a  fow  trees  of  considei-able  size,  and 
is  situated  directly  on  the  north  bank  of  Kite  Creek.  This 
dense  thicket  had  been  mentioned  as  a  favorite  rende/vous 
for  horse  thieves,  where  they  were  in  the  habit  of  conceal- 
ing their  stolon  property,  and  one  of  us  had  suggostotl  that 


102 


EAKLY  BENCH  AND  BAR  OF  ILLINOIS. 


§ 


ii  .' 


il  was  a  likely  j)laco  for  tlioni  to  make  an  attack  upon  us  if 
they  so  inttMKk'd,  but  for  tiie  reasons  before  statetl  we  had 
no  apprehension  of  tliis.  The  trail  ran  along  on  the  north 
side  of  the  grove  and  as  close  as  possible  to  the  hazel  thicket, 
which  bordered  it.  Into  tliis  thicket  we  could  not  see  a  yard, 
and  all  was  dark  in  the  somber  gloom  be}  ond  it.  Just  as  we 
got  opposite  the  middle  of  the  grove,  one  Vvithin  it,  and 
pi-etty  close  to  us.  hallooetl  out:  '•  WIjo  goes  there  r'  And 
J\lr.  Cook  thinks  he  saw  a  man  in  his  shirt  sleeves  with  a 
riHe  in  his  hand,  but  I  did  not  observe  him.  At  this  I  con- 
fess my  heart  jumped  j>retty  well  uj)  in  my  throat,  and  1 
will  venture  the  oj)inion  that  it  was  much  the  same  way 
with  Mr.  Cook;  but  I  doubt  if  it  occurred  to  him,  that  as  1 
sat  u[)on  the  right  side  and  next  the  grove  I  might  possibly 
serve  as  a  shield  to  him,  nor  did  that,  then,  occur  to  me. 

Neither  of  us  s[)okea  word  when  we  heard  this  salutation; 
bnt  I  gave  Snaj)  a  check  of  the  reins,  which  he  well  under- 
stood, and  went  on  at  a  slashing  trot,  and  in  two  minutes 
])assed  through  the  ford  of  the  creek  Avith  a  great  splash, 
and  up  the  stee])  bank  )n  the  other  side,  Avithout  losing  a 
single  step  in  his  long  swinging  trot.  Xot  a  single  word 
l)assed  between  us,  until  we  had  got  a  mile  from  the  ford, 
Avhen  I  in{]uired  ii  his  shotgun,  which  lay  by  his  side,  was 
loaded,  but  he  was  not  sure  whether  it  was  or  not.  We 
])assed  over  the  twelve  miles,  of  course,  to  Paw  l*aw  Grove, 
canvassing  the  situation  as  we  went  along,  and  soon  con- 
cluded that  there  were  no  horse  thieves  or  their  sympa- 
thizers in  Plum  Thicket,  but  that  probably  some  innocent 
ti'avelers  had  camped  there  for  the  night,  who,  to  amuse 
themselves,  had  hailed  us  in  the  numner  stated,  and  this  is 
as  near  as  I  ever  came  to  sulfering  the  performance  of  the 
many  threats  which  I  have  received  for  the  ])erfornuince  of 
official  duties. 

Several  other  incidents  happened  when  I  held  the  circuit 
in  Ogle  county,  which,  if  not  instructive,  may  bo  a  little 
amusing,  i.l  ono  tarm  on  the  first  day  a  jury  was  sent 
out  in  an  unimportant  case,  which  I  thought  Avas  a  very 


CIRCUIT  SCENES. 


10;] 


])lain  one,  nnd  expected  a  verdict  after  a  short  deliberation, 
and  was  surprised  to  see  them  come  into  court  after  three 
hours  ami  ask  to  by  dischari^ed,  because  they  eouM  not 
auree.  I  sent  tliem  back  witli  the  intimation  that  I  very 
rarely  recou'iiized  the  impossibility  of  an  a<4'reement,  especially 
in  such  a  case,  and  certainly  not  without  the  most  amj)le 
o|)[)ortunity  for  deliberation.  They  came  in  with  the  same 
report,  and  wore  sont  back  every  «l;iy  in  the  week,  till  Satur- 
day mornini^,  when  they  brought  in  a  verdict,  as  I  thought 
ir  should  b(>.  So  so<m  as  the  verdict  was  announced  Mr. 
J'eters.  of  counsel  with  the  losing  party,  jumpe.l  to  his 
feet,  and  moved  to  set  the  verdict  aside,  and  in  support  of 
his  motion,  read  an  atii  lavit  of  his  client,  stating  that  one 
«»t'  the  juroi's.  naming  him,  had,  during  one  of  the  nights  of 
the  deliberation,  left  the  juiy  room,  and  sej)ai'ated  from  his 
bdlow  jurors,  not  being  in  charge  of  any  officer  of  the  court, 
and  had  goiu;  to  the  tavern,  where  ho  had  slept  all  night  in 
b;'d  with  another  man. 

So  soon  Jis  this  ailidavit  was  read  an  old  farmer  named 
Kellogg,  fi'om  JJuffalo  Grovt^  one  of  the  jurors,  a  hard-listed 
and  hard-headed  settler,  wlio  claimed  to  be  and  thought  he 
was  an  oracle  in  his  neighborhood,  jumped  to  his  feet,  and 
said:  "Xow,  Judge,  I  never  would  have  agreed  to  that 
verdict  in  the  world,  but  I  knew  vou  would  have;  to  set  it 
aside,"  and  then  sat  down  with  a,n  air  of  gn^it  satisfaction. 

Immediately  the  counsel  on  the  other  side  arose  and  I'ead 
an  affidavit  of  the  juror  named,  which  stated  it  v»as  true; 
that  having  been  worn  out  and  made  sick  by  the  constant 
wraii^dng  and  disputations  of  one  of  tin;  juroi's  with  the 
other  eleven  for  several  d.iys  and  nights,  he  had  separated 
from  the  other  jurors  and  gone  to  the  tavern,  wliei'e  he  jjad 
slept  in  a  b(Ml  with  Mr.  Peters  that  night,  ])ut  that  not  a 
word  had  passed  between  them  or  between  him  and  any 
other  person  in  relation  to  the  case  under considej'ation,  and 
that  he  had  immediately  returned  to  the  jury  room,  and 
there  continued  until  a  verdict  had  been  agreed  upon. 

As  Mr.  Teters  had  nothing  furtiier  to  say,  and  as  I  was 


I 


104 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


Avoll  satisfied  tliat  no  impro])er  influence  had  been  exorcised 
upon  the  juror,  I  stretched  the  point  a  litth\  and  overriik«l 
tlie  motion,  at  which  Mr.  Kellogg-  seemed  tiioroughly  disap- 
j)ointed  and  disgusted. 

I  confess  U)  a  little  surprise  at  tlie  celerity  with  Avhicli  these 
allhlavits  must  iiave  been  prepared,  but  as  I  have  bcl'oiHi 
statv'd  the  circuit  practice  often  recpiired  \"d\)'u]  thinking  and 
rapid  work,  and  as  it  might  be  that  the  facts  were  obtained 
by  intuition  only,  and  as  neither  party  raised  any  (piestions 
ab(jut  it,  I  did  not  think  it  my  duty  to  do  no. 

I  may  remark,  however,  that  the  Jury  had  l)eon  author- 
ized to  s(.'al  their  verdict  and  then  se])arate  if  they  should 
have  agi'eed  upon  a  verdict  before  the  u])ening  of  the  court. 
Avhich  they  did;  an  investigation  might  haveex|)lained  how 
the  facts  were  obtained,  and  the  athdavits  so  promptly  pre- 
pared. 

There  was  practicing  at  that  bar  an  old  bachelor  named 
Fuller,  who  was  a  very  good  lawyer,  but  had  his  ])eculiari- 
ties,  as  old  bachelors  are  frct|uently  suppose<l  to  have.  Uiu' 
of  these  ju^uliarities  was  that  he  was  constanth'  in  fear  of 
taking  cold,  to  avoid  whi,^*h  calamity,  exce})t  in  very  ])leas- 
ant  weather,  he  wore  over  his  dress  coat  a  surtout  coat  with 
the  skirts  cut  off  at  the  hips. 

On  the  o])})osite  side  of  the  river  resided  an  English  fam- 
ily of  the  name  of  IJenshaw,  who  had  associated  in  good 
society  in  the  old  country,  and  here  entertained  their  friends 
Avith  great  hospitality.  Some  young  lady  friends  were  vis- 
itinu'  them  from  Chicago,  who  much  admired  Mrs.  lien- 
shaw's  mode  of  cooking  game,  Avhich  was  then  very  abun- 
dant there.  One  of  them  inquired  of  Mrs.  Ilenshaw  how 
she  managed  to  have  such  tender,  delicious  venison,  and 
she  promptly  replied  that  she  hung  it  up  by  the  tail  till  it 
dro})[)ed  olf.  A  few  days  later  the  young  ladies  ci-ossed  the 
river  to  do  some  sho})ping  in  town,  and  wlien  they  returned 
she  in(piired  of  them  whom  they  had  seen,  when  one  of 
them  replied,  that  among  otlics  they  had  met  Mr.  Fuller 
in  the  store  where  they  wero  trading,  when  Mrs.  Ilenshaw 


CIRCUIT  SCENES. 


10.") 


in(|iiii'e(l  how  tlioy  liked  ^Iv.  Fuller.  The  reply  v/iis  that  he 
was  a  very  ])leasant  i^entleinan,  hut  ho  aj)i)ear(Ml  to  have 
hoen  treated  as  she  treated  her  venison,  and  so  he  must  he 
I'ipe,  if  not  tender  or  delicious.  Let  nie  say  to  the  credit  <»!' 
^Ir.  Fuller  that  he  suhseijueutly  (jot  married. 

Ml'.  Fi'idley  had  precoded  Mr.  Cook  as  l)eforo  stated,  as 


P 


irosecuting  attorney  in  the  nintii  circuit,  and  during  Ins 
administration  a  case  of  mayhem  was  sent  d(»wn  to  <  )gh' 
county  hy  a  change  of  venue  from  Jo  Daviess  county. 
When  the  ])r()secutor  was  ])ut  upon  the  stand  he  showed  up 
as  a  well  huilt,  j)owerful  man.  while  the  prisoner  was  rather 
a  small  man.  and  a])j)eared  as  if  he  would  he  no  match  for 
the  pr(tsecut(U'  in  a  light;  hut  there  was  one  eye  half 
forced  from  its  socket,  with  a  re})ul:;ive  white  ap|)earanc  •. 
which  showed  that  he  had  got  much  the  worse  in  the  dis- 
])ute.  A  hrother  of  the  complainant,  and  anotlu  r  person 
were  ])resent  at  the  i/iiH.  The  prosecutor  and  his  hrother 
hoth  swore  that  the  ])risoner  was  the  aggressor,  while  the 
inditrerent  hyst'Uider  testitied  that  the  complainant  had 
commenced  the  light.  All  of  the  v.-itnesses  were  examined 
in  great  detail  from  the  heginning  to  the  end,  showing  the 
])rogress  and  the  end  of  the  KcrhnmiKje.  There  wiM'e  great 
discrepancies  in  the  statements  made  hy  the  hrothei-s  and 
the  third  witness,  and  as  the  science  of  jurisprudence 
had  not  so  far  progressed  as  to  olfer  a  high  ]M'eniium  for 
])erjury  hy  allowing  the  prisoner  to  swear  in  his  own  excui- 
jiation,  the  evidence  closed  with  two  witnesses  against  one. 
Mr.  Dickey,  who  was  defending  the  ])rison(^r,  to  overcome 
this  advantage,  in  summing  up  to  the  jury  pointed  out 
many  inconsistencies  in  the  statements  of  the  witnesses  t'oi- 
the  ]>eople,  and  insisted  that  the  story  told  hy  his  witness 
was  the  most  jn'ohahle  and  natural  for  the  occurrences  of 
such  a  light,  and  said  that  if  Scott  or  JJulwer  or  Coo|)er,  oi' 
any  other  great  novelist,  were  going  todescriln'  such  a  light 
in  a  novel  they  would  descrihe  it  just  as  his  witness  had 
testiiied  to  this  one,  simply  because  it  was  most  pr<.)hahle 


lOG 


EARLY  BENCH  AND  BAR   OF  ILLINOIS. 


iunl  natural — most  consistent  with  liinnan  action  undor  such 
(•<)n(liti()ns. 

In  I'cply  to  tills  Fi'idlcy  in  his  ch)i:in<i'  sjx'och  said  that 
Mr.  J)ickcv  hjid  t(jld  thoin  that  if  a  novelist  was  <i<)in_i;'  to 
]>ut  in  his  novel  an  account  of  such  a  (i.ii'ht  as  this  was.  lu^ 
would  put  it  down  just  as  iiis  witness  had  stated  it  here. 
"  Well."'  said  Mr.  Fridlev,  "1  a;L'-reG  with  Mr.  Dickey  in  this. 
Now  what  does  a  novelist  do,  when  lie's  ^•<)in<>'  to  write  a 
novel;  He  just  sits  <lown  and  invents  the  infernalest  lie 
he  can  think  of.  Then  he  tells  the  story  in  his  hook,  and 
that's  just  the  way  with  ^Ir.  Dickey's  witness.  He  just 
invented  this  bi<«;  lie,  and  then  caine  here  and  told  it  to  you, 
hut  he  didn't  exj)ect  yon  to  believe  it  any  more  than  you 
wt)uld  a  novel.  Mr.  Dickey  was  right  in  what  he  said  and 
he  d(tn't  believe  it  either." 

This  was  a  shot  fatal  to  an  oth.erwise  ]>romisinn'  case. 
The  prisoner  was  convicted  and  sent  to  the  jienitentiary. 


X. 


STOUIKS    AND    I.NCinKNTS    OF    TKIALS. 


T  have  had  occasion  to  mention  ^Fr.  Fridlev  as  prosecutina" 
attorney  and  as  an  actor  in  some  of  the  circuit  scenes  in 
( )<ile  countv,  and  as  1  shall  probablv  have  occasion  to  men- 
tion  his  )iame  hereafter,  I  m;\y  be  pardoned  a  few  lines 
descriptive  of  him  as  a  lawyer. 

JJenjamin  V.  Fridlev  was  certainly  a  man  of  some  remark- 
able characteristics.  His  mind  was  clear  and  jtenetrating-, 
liis  observations  excejitionally  acute;  his  study  of  mankind 
was  much  more  ]m)found  than  his  study  of  the  law.  He 
Avas  witty  without  knowin<>-  it,  and  his  sense  of  the  ludi- 
crous was  really  brilliant  without  his  api)earin«>"  to  ai)))re- 
ciate  it.  I  scarcely  ever  knew  him  to  laut^h,  while  his  (piaint 
suo-oestions  would  sometimes  ])rovoke  lauuhter  in  others, 
thou'ili  oc'iierally  these  were  made  in  so  solemn  and  matter- 
of-fact  a  way  as  not  to  ])rovoke  boisterous  laui^hter,  but 
rather  a  (piiet  internal  satisfaction. 


1^ 


CIRCUIT  SCENES. 


107 


lie  readily  perceived  the  vital  ]ioiiits  of  a  case,  tlM>u;j,li 
Aviieii  his  interest  could  be  sul)serve(l  therelty  he  could  appear 
to  l)e  as  stolid  as  a  block  about  theuj.  His  primary  etluca- 
tinii  was  very  limited,  and  his  ortho^rajthy  was  nearly  as 
icmarkable  as  that  of  Chief  Justice  Wilson,  who  always 
assumed  that  the  proper  way  to  spell  any  word  was  to  use 
as  many  letters  as  could  ])ossibly  be  a|)pi'opriated  for  the 
])urpuse.  I  observed  once,  when  sittinjx  beside  him  on  the 
bench,  and  Stephen  T.  Lo^an  was  ai'<j;uin^a  caseand  <|Uoted 
from  Dana's  reports,  that  in  making  a  note  of  it  he  wrote  it 
down  Ddhx'ij;  and  yet  any  one  who  will  read  over  his  opin- 
ions will  ol)servo  that  ho  was  really  a  fine  scholai-,  and  a 
clear  and  perspicuous  writer. 

His  oi)inions  will  compare  favorably  with  those  of  any 
other  ,jud<2,e  to  be  found  in  our  reports.  AVith  this  example 
befoi'e  us  we  are  not  at  liberty  to  condemn  ^Ir.  Fridley  for 
his  bad  spellini^.  He,  too,  was  a  very  ])oor  I'eader,  but  by 
])auses,  repetitions  and  eni])hasis,  he  could  cover  this  u|> 
most  inf:,'eni<nisly,  and  would  manage  to  give  what  he  read 
a  meaning  to  suit  himself.  I  never  saw  evidence  that  he 
had  ever  read  a  literary  work  in  his  life  and  I  doubt  if  he 
ever  read  a  lav,'  book  through,  but  he  knew  a  great  deal  of 
law,  and  what  he  did  know  he  was  able  to  turn  to  the  verv 
best  account.  He  learned  his  law  from  his  observations  in 
courts  or  in  conversations  with  other  lawyers.  When  he 
heard  a  ])roposition  of  law  stated  for  the  first  time  he  could 
tell  intuitively  wiietlier  it  was  good  law,  by  deternuning  in 
his  own  mind  if  it  ought  to  be  law.  When  it  suit(>(l  his 
])urpose  he  would  jiretend  to  be  ignorant  of  a  ])rinci])le 
which  he  well  understood,  and  would  pretend  to  be  unal»le 
to  understand  a  ruling  which  he  perfectly  comprehended. 

He  was  the  originator  of  many  aphorisms,  which  I  often 
hear  repeated,  the  author  of  which  is  not  generally  known: 
for  instance :  Fridley  and  I  were  appointed  by  Judge  Ford 
at  the  UeKalb  Circuii  Court  to  defend  an  impecunious 
horse-thief.  When  Ave  were  congratulating  ourselves  that 
the  evidence  was  quite  insulticient  to  convict  him,  as  a  last 


T 


' 


108 


EARLY  BENXII  AND  BAR  OF  ILLINOIS. 


resort,  tlic  oIKccr  wlio  arrostod  liim  was  put  upon  tlio  stand, 
who  tcstificMl  that  the  prisoner  had  confessed  to  him  that 
he  had  stoW'U  the  horse.  At  this  jjoint  the  court  adjourned 
for  dinner.  When  walkin<^  U|)  to  the  hotel  toii'ctiier,  1  re- 
luai'ked  to  Fridley  that  a  very  <;ooil  case  had  l)een  badly 
spoih.Ml  by  that  last  witness.  "  Yes,"  answered  he,  "in  tills 
counti'v,  if  a  man  is  amind  to  bo  a  darn  fool,  there  is  no 
law  agin  it." 

After  our  man  was  sont  to  the  penitentiary  I  repeated 
this  to  the  jud<^'e  and  lawyers  present,  who  seemed  t(j  thinU 
it  a  very  f(jrciblo  and  novel  way  of  statin*^  a  ))lain  ])i'oi)o- 
sition,  and  I  have  often  heard  it  rejieatcd  since  to  illustrate 
a  great  variety  of  conditions  to  which  it  was  ai)plicable. 

Fi'idley  was  state's  attorney  for  two  years  during  my  ati- 
ministrati(m  on  the  circuit  bench,  and  he  was  certaiidy  a 
most  etlicient  ])rosecutor;  in  the  main  he  was  just  and  fail', 
but  when  fully  convinced  that  the  prisoner  was  guilty,  he 
was  sure  to  convict  him  in  one  way  or  another.  AVhen  the 
emergency  re(|uired  it,  he  exceeded  all  men  I  ever  knew  to 
worm  in  illegal  testimony,  and  he  would  contrive  to  make  it 
tell,  when  it  was  ruled  out,  but  he  would  do  it  in  such  away 
as  to  avoid  censure,  and  yet  to  make  the  very  ruling  out  of 
the  evidence  tell  jigainst  his  o|)ponent,  sometimes  by  an  af- 
fectation of  illiteracy.  The  first  time  he  went  round  the 
circuit  as  ])rosecutor,  many  of  the  biAvyers  evidently  thought 
they  would  have  a  fine  time,  and  sought  to  ex])ose  his  want 
of  education  in  various  ways,  and  particularly  by  moving  to 
cpiash  his  indictments  for  bad  spelling  and  bad  grammaj', 
wdiich  they  would  parade  to  the  amusement  of  tlic  audience; 
but  these  were  generally  overruled,  as  they  expected  they 
would  be,  but  this  "was  invariabl}'  followed  by  a  successful 
])rosecution,  whether  the  prisoner  was  guilty  or  innocent,  so 
that  it  was  not  long  before  this  amusement  was  found  to  be 
too  expensive  to  be  indulged  in,  unless  the  defense  was 
deemed  so  clear  that  conviction  was  thought  to  be  impos- 
sible. 

AVhen  I  was  holding  the  Kane  Circuit,  the  grand  jury 


CI  lie  U  IT  SCENES. 


100 


c'liMo  into  court,  <in<l  coinidiiinod  tli;ii  tlicv  liad  foimd  iiii 
iiKlictinciit  ii/^aiiist  u  man  lor  larc.Miy,  l)iit  that  tlio  state's 
attoriK'V  rc^i'us'.'d  t(j  draw  the  iiidictiiu'iit;  wlirrcupoii  Mv. 
Fi'idlev  stated  that  ho  liad  lioavd  all  the  evidence  before  the 
fi'i'aiid  jury,  and  was  certain  that  no  conviction  could  be  had; 
that  tlu;  man  com|)lained  of  had  found  an  old  plowshai'e  in 
tiie  we;'ds  by  the  side  of  the  road,  and  supposing-  that  it  had 
been  lost  or  thrown  a.way,  had  tin-own  it  into  his  wa<i()t\  and 
taken  it  home,  without  any  felonio'.is  int(>nt;  and  that  he  did 
not  deem  it  his  duty  to  j)ut  the  county  to  the  expense  of  a 
useless  ti'lal.  1  told  him  that  ho  liad  bettor  di-aw  th«'  indict- 
ment,and  when  it  should  l»e  returned  into  court  ho  could  do 
with  it  as  he  thou;^ht  best. 

The  defendant  was  a  Gorman,  a  middlo-air'^d,  well-to-do 
farnior,  and  not  having-  well  und(>rstood  what  had  taken 
l)laco  in  court,  was  •••rcatly  alarmed  upon  loai-ning'  that  he 
had  boon  indicted  for  st(>aling  the  old  plowshare,  and  in 
hot  hasto  omployod  ISiv.  Peters  to  defend  him.  Mr.  I'ctei's 
feolin<^  that  he  was  in  conscience  hound  to  <lo  something-  t<» 
earn  the  fat  fee  which  he  intondi^d  to  charge  the  wealthy 
old  CJerman,  and  in  order  to  anticii)ato  a  110//1'  jtros'.  by 
Fridloy,  hastenod  to  make  a  motion  to  (luash  the  indictment 
in  a  rather  ostentatious  way,  raising-  the  most  trivial  oliji'c- 
tions  which  he  argued  in  a  way  to  give  the  imi)r«»ssion 
that  the  state's  attorney  did  not  understand  his  business, 
although  in  conclusion  ho  tried  to  smooth  it  over,  as  if  he 
feared  to  wound  ^Ir.  Fridloy 's  susceptibilities.  AVhon  he 
closed  I  proin])tly  overruled  the  motion  to  (juash  without 
hearing  from  ]\[r.  Fridloy,  when  j\[r.  Peters  turned  to  the 
state's  attorney  with  a  rather  constnpv.Mitial  air,  ami  asked 
him  what  ho  proposed  to  do  with  the  case,  exi)ecting  ho 
doubt  a  no//e  jiros.  at  once,  hut  Fiidley  was  fairly  aroused 
by  this  motion  to  quash,  and  with  the  greatest  coolness 
rose  and  replied  that  he  proposed  to  try  it  and  to  convict 
the  prisoner,  too;  that  upon  a  partial  understanding  of  the 
case  before  the  grand  jur}'"  he  had  believed  tliat  the  prisonoi- 
had   found   the  plowshare,  and  picked  it  up   innocently, 


no 


EARLY  HENCII  AND  HAR  OF  ILLINOIS. 


I»iit  on  .1  inoro  tlionmj^li  cxiiiniiiMtion  of  the  cvidciic;'.  niid 
tlic  <lis('ov«M'y  of  now  facts,  wliicli  showed  that  the  pi-ison.-r 
had  concealed  it  aniono-  sonio  ohl  ii'on  in  a  loft,  he  was  con- 
vinced it  was  a  most  fla^^i'ant  case  of  (h'liherate  lai'ceny. 
which  it  was  his  «lnty  to  pi-osecntc?  to  the  ntniost;  that  lie 
was  now  convinced  that  the  ^-I'and  jiii'v  was  ri<;ht,  and  that 
he  had  l)cen  wron<^,  and  that  he  would  show  the  court  and 
jury  how  wron<^'  he  had  at  lirst  been,  and  concludofi  by  say- 
in^-,  "  Let  a  jiii-y  come." 

There  was  a  snap  in  his  dark,  koon  oyo,  shininfj  out  of  a 
solemn,  stoical  countenanco,  which  showed  that  he  was  much 
in  earnest. 

M)'.  Peters  now  apja-eciatod  his  pei-il  and  the  indiscretion 
lu»  had  committed.  The  ell'ect  of  Mr.  Fridley's  statement 
in  court  was  already  ])ari'ie(l,  lie  luid  no  knowled'i'e of  the 
facts  of  the  case  in  detail,  and  he  I'l  arcd  tliere  mi«:lit  be 
sometinn,i>'  which  mi,n'ht  1)0  successfully  urgHMJ  au'ainst  him. 
It  was  a  hot  day  in  June,  and  tiie  pel';  i)iration  burst  out  in 
iii'cat  beads,  covering'  his  nakcMl  ))ate  and  fat  face,  and  I'un- 
nin<^-  down  his  cheeks  in  a  tori'cnt.  A  jury  was  called  and 
the  trial  bc\<;:in — and  it  was  a  trial. 

Durino-  the  j)rosecution  there  was  a  comltination  of  mild- 
ness of  manner  and  ferocity  of  elfect  which  I  have  scarcely 
seen  e(pialed.  The  trial  lasted  until  nearly  dark,  Avhen  the 
jury  was  sent  out,  and  I  a<ljourned  coui't  for  supper. 

AVlien  the  court  nu^t  after  tea  the  jury  l)rou<"lit  in  a  V(M'- 
dict  of  '\uuilty."  The  ])oor  (lerman  almost  fainted  when 
he  was  iid'ormed  of  the  verdict,  and  the  ])erspiration  rolled 
from  ^Ir.  Peters  in  more  co])ious  streams  than  ever  before, 
while  Fri<lley  sat  as  calm  and  immovable  as  a  statue.  A 
motion  was  immediately  made  for  a  new'ti-ial,  and  as  it  was 
in  the  evenin<^  of  the  last  day  of  the  term,  I  told  Mr.  I'eters 
that  I  would  licar  from  the  state's  attorney,  Avho  sim))ly  said 
as  it  was  late  he  v.'ould  leave  it  to  the  court.  I  then  summed 
up  the  evidence,  brieHy  showing'  tiiut,  in  my  opinion,  the 
])lowshare  had  been  picked  u])  without  any  felonious  intent, 
and  concluded  by  ordering  a  new  t)'ial. 


I'lUlUIT  SCKNi:S. 


Ill 


^Ff.  I't't(M's  tlicn  iU'osc.  as  mild  a  ii'juuici'cd  inaii  as  (me 
often  sees,  turned  to  Ml'.  Fridlev.  said  in  a  ratliei-  sootlmie' 
voice  :  ••  A  Iter  liearin*:'  the  vimvs  of  the  court  on  the  siiltject. 
I  a|>|K'al  to  you  if  you  consider  it  your  duty  to  juosecute 


tl 


lis  case 


fui'tl 


ler 


FridI 


ev  arose 


!ii<l  in  a  ver\-  calm  voice 


said.  "Oh,  Mi*.  Petei's.  if  you  cca^.e  to  occupy  a  hostile  atti- 
tude. I  will  disunss  the  case." 

Mark  Flet<'lier  was  clerk  (»f  the  Circuit  Court  of  TCatie 
County,  and  a  most  excellent  clerk  he  was.  too.  lie  had  a 
vein  of  (|ui(^t  humor  ahout  him  in  which  h<'  fre(|uently  in- 
(lule'ed.  He  had  taken  an  American  silver  dollar  aial 
jiiaced  it  on  the  outside  of  his  llilde,  on  which  he  adminis- 
tv'i'ed  olliciai  oaths,  lie  then  placed  it  in  ids  pi'css  and 
made  a  deep  and  distinct  impri'ssion  of  the  coin  on  tin-  cover 
of  tlu^  hook,  (tn  the  op|)osite  cover  of  whicii  there  was  a 
cross.  When  asked  why  he  had  the  impression  of  the  dol- 
lar on  tho  hook,  he  i'epli(>d  that  when  he  swore  a  Catholic 
ho  pi'esented  that  side  on  which  the  ci'oss  was  shown,  hut 
when  he  swor(?  a  Yankee,  he  ])i'(>s;'nted  that  side  of  the  hook 
on  which  tlu?  dollai'  was  shown. 

At  one  term  of  the  court  a  case  of  divorce  was  tried  in 
which  a  I'reshyterian  uiinister  from  Klein  was  the  com- 
])lainant.  He  proved  a  |)retty  strong' case  of  the  misci.n- 
diict  of  the  del'cMidaut  hy  several  witnesses  hrou_e|it  from 
(^uincy,  Illinois,  hut  not  hein^-  entii'ciy  sati;;(ied,  I  held  the 
case  over  for  further  consideration.  A  day  or  two  aftei'  I 
called  the  case  up,  reviewin<^  the  evidence,  and  exprc^ssinir 
my  doubts  about  its  sulKoieney  and  the  ho|)e  that  some  fui-- 
thor  evidence  mi<i"ht  be  produced  which  would  remove  mv 
doubts.  Somj  bystander  from  Eluin,  liavin<;-  misunder- 
stood what  I  had  said,  rushed  away  in  hot  liast(^  and  in- 
foi-med  the  cler<^*yman  tluit  I  had  i^-ranted  his  di voire. 
Whereupon,  the  same  evenine-  he  was  married  t(»  a  sister  of 
his  flock,  but  after  two  days  of  wed<led  bliss  he  learned,  to 
his  consternation,  that  I  had  not  decitled  the  case  at  all. 

He  immediately  started  for  Geneva,  and  rushed  into  the 
court  in  breathless  haste  just  as  1  was  about  to  adjourn  it  for 


112 


>) 


KAUI.Y  HKNCFI  AND  HAIt  OF  U-I.INOIS. 


•I 


the  Ici'iM,  Jind  iiiiidc  known  the  pli^ilit  in  wliicli  Ii  •  ToniKl 
liinisi'ir.  His  <lc's|>iiir  ujis  unniist:ikiilil<\  I  allowrd  liiiii  ti> 
l» '  sudi'M.  Ills  ti>stiinimy  rctUDVcd  nil  donht  and  I  jiiiiiitcd 
tlio  d('('i'('(!.  1  v.'as  tolfl  that  lio  hastened  hi'.ck  to  Klyin  with 
as  much  s])(>(>(l  ns  hi*  had  shown  in  his  wav  (h>wn.  and  was 
iiiari'ied  over  a'i'ain  as  (juicIJy  as  sinne  on;' co-.dd  he  found 
to  |)ei'i'oi'in  th(;  (lorenioiiy. 

At  another  teiMii  of  the  sanio  couj't  three  men  wei'e 
indicted  for  tht;  hnrj^lai'V  of  u  io<4*  cahin  in  thec(aintrv  in 
wliich  lived  a  Scotch  family,  'i'lie  man  of  the  house  was 
away  at  tin;  time;  only  the  wife  and  seveiT.l  small  childi'en 
were  in  tin*  cahin  and  necessarily  she  was  the  only  witness. 
All  of  the  bui'^lars  were  masked,  hut  she  I'cco^^ni/ed  them 
all  l>y  tluMr  voices,  forth'.y  lived  ii  the  nein'h hoi-hood  and 
she  knew  them  all.  Tlu;  manner  in  which  she  e^ave  her  tes- 
timony Avas  very  convincin;^-;  indetvl,  I  have  rarely  seen  a 
witness  Avhoso  testimony  more  favorably  imj)i"essed  me.  ( )n 
the  cross-i'xaniination  by  their  connst'l,  s1k>  was  re(|uired  to 
detail  with  j^reat  ])articularity  every  act  which  each  oia*  of 
the  defendants  did  while  ransackin/i,'  the  house  foi'  plundei". 
Dui'iii^'  the  examination  she  had  stated  that  one  of  the 
defendants  had  done  some  act  which  I  do  not  now  i-eniem- 
bei".  Instantly  that  defendant  whispered  somethin<;'  to  his 
(;ounsel,  who  no;lded  his  ho:id  and  wont  on  witli  the 
examination  on  the  lino  which  he  was  then  jjui'suin^'-; 
after  a  Avhih^  he  came  back  to  th:*  same  point  and  led  her 
over  the  same  gTound  as  before,  but  when  she  came  to 
this  ])articular  point  she  stated  it  dilferently  from  her 
former  statement.  Counsel  then  asked  her  if  she  had  not 
formerly  stated  it  Avas  so  and  so;  she  stated  that  she  had 
not,  or  if  she  had  it  Avas  a  eli[*  of  the  tongue. 

This  Avas  most  convincinjj;'  pj\)of  to  me  that  her  statements 
Avorc  certainly  true,  for  li  the  defendant  liad  not  been 
present  ho  could  not  have  knoAvn  that  she  made  a  mistake 
in  relating-  the  transaction,  and  there  could  be  no  doubt  that 
his  Avhispjrod  communication  to  his  counsel  told  him  of  that 
mistake.     However,  the  state's  attornev  liad  not  seen  the 


CI UCU IT  scr.NKS. 


11 


tnns;i('ti(>!i  ns  T  oIisitvimI  it,  nor  did  I  tell  him  of  it  iiiiiil 
jirtcrwiii'd.  Indeed,  I  was  (!()nviiK'i'd  that  the  jiii'V  would 
<'n(ivi('t  them,  and  so  were  they,  for  they  disii|»|iriii'e(|  that 
iiiyht,  beiiij,^  out  on  hail.  I  kept  the  jury  t(t;4'ether  till  the 
sheriir  i»rou;,Hit  thi;  defendants  l)!i('k.  He  found  them  stowed 
away  in  tln^  hold  of  a  vossol  in  the  Cliican'o  luirhor  which 
was  iihout  to  sail  for  tla^  lower  I  lUes.  It  was  late  in  the 
eveniiii^'of  the  last  day  of  the  eoui't  when  he  returnecl  with 
Ids  prisoners,  and  I  reocnved  the  verdict,  ai)d  senteru-e  was 
passed.  The  severity  of  the  punishment  iidlicted  induced  the 
suspicion  that  the  jury  ha<l  prithalily  chanu'ed  that  part  of 
tlieii"  vei'dict  during''  tho  two  days  they  had  i)een  ke[»t  to- 
«;«'thor  waiting'  for  the  return  of  tho  prisoners. 


xr. 


i.iFK  o\   IMK  ciKcrrr. 


T  o1)sorvo  in  tlio  (hiily  ])r«'ss  that  some  on«»  luis  i)iti'oduced 
into  the;  Le^'islature  a  hill  authori/.int^'  the  judges  of  cuiii'ts 
to  ehari.;e  tla^  juries  in  cases  tried  hefore  them  as  they  may 
think  the  merits  of  U)o  case  reipiire,  without  hein^'  strictly 
conlined  to  wi'itten  instructions.  Such  was  tho  law  durin<i' 
the  early  years  of  my  judicial  service,  and  in  important  cases 
I  freipiently  ado])ted  tiuit  mode,  (h'omin<>'  it  possihlo  in  that 
way  to  assist  the  jury  in  arriviuL*-  aL  cori'cct  conclusions.  In 
New  York,  where  1  had  studied  my  pi'ol'ession,  such  was  the 
universal  ])ractico  of  the  courts.  My  observation  then*  had 
tauj^ht  mo  tliat  tho  greatest  care  was  necessary  for  tlu;  judiit; 
not  to  sooni  to  take  sides  with  either  party — not  to  expi'css 
any  opinion  or  bias  as  to  which  jjarty  should  succeed — but 
simply  to  review  tho  evidence,  if  necessary,  with  exact  faii'- 
ness.  and  to  clearly  state  the  priiu^ples  of  law  a|)plical)le  to 
it.  There  I  had  observed  that  wheiuner  a  jnd<4e  assumed 
the  role  of  an  advocate,  his  f)pinions  at  once  ceased  to  liavea 
■  re ponde rating  inlluonce,  an<l  were  not  treated  with  any 
more  contidoration  than  were  those  of   the  lawyer  advocat- 


■^ 


IH 


114 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


I      . 


iii^'-  tlu'  s:iiiio  side;  Avlicroas  the  jud^^e  who  sliowcd  ];'rfVct 
imiiartiality  was  listened  to  with  the  <^re{^te.-.i  deferenee  and 
(■oiili(U'nce.  I»y  these  ol)servations  I  profited  in  my  mode  of 
(•har<iin<^'  jnries,  and  I  now  believe  that  T  could  do  more  in 
that  way  to  assist  jnries  in  arrivin<;  at  correct  conclusions 
than  I  could  have  done  by  adhering  strictly  to  the  written 
insti'uctions  asked. 

At  the  next  term  of  the  court  in  Kendall  county  after  the 
])resent  law  re(|uiring  written  instruct!  ms  to  l)e  iidhei'ed  to 
l>v  the  courts,  Mr.  I'utterfield,  Avho  had  ])racticed  for  many 
years  in  the  Xew  York  coui'ts,  was  in  attendance. 

]\[r.  Dickey,  who  was  mucli  jjleased  with  the  passage  of 
the  new  law,  spoke  to  several  members  of  the  bai'  of  it,  and 
ainon<^'  others  addressed  .Mi".  JJuttertield,  and  asked  him  if 
he  did  not  think  it  an  excellent  law.  "  Oh,  yes."  said  Mr. 
lUittei'lield,  "  it  is  a  most  excellent  law.  Tie  u[)  the  hands 
of  the  court,  and  turn  loose  the  petti fogyers,  and  undoubted 
justice  will  alwavs  be  done."  I  thouijht  then,  and  I  still 
think,  that  this  was  a  forcible  way  of  stating  an  undoubted 
truth.  If  a  judge  is  Avorthy  of  the  seat  he  occupies,  he  is 
entitled  to  confidence  and  respect,  and  should  bi' entrusted 
with  the  im])artial  administraticm  of  justice  in  his  court. 
Courts  are  institutetl  to  administer  impartial  justice  accord- 
ing to  law  to  all  suitcn's  before  them,  and  not  to  sit  by  and 
see  justice  ])erverted  because  one  lawyer  ha))pens  to  be 
smarter  than  the  other,  and  should  not  be  compelled  to  act 
as  mere  stakeholders  between  the  advocates. 

Mr.  I'utterHeld  was  undoubtedly  a  very  able  hnvyer,  and 
would  often  illustrate  an  idea  by  comparison,  with  great 
force,  Avhich,  however,  was  frequently  more  a])t  than  con- 
vincing. When  the  case  of  the  ShaA\neetown  I'ank  was 
before  the  Supreme  Court  he  represented  the  l)ank.  That 
bank  had  been  created  and  was  doing  business  before  the 
second  constitutional  amendment  had  been  adopted.  That 
constitution  ])revented  the  creation  of  any  new  banks. 
When  the  charter  of  the  old  bank  was  al)out  to  expii-e  by 
limitation,  a  law  was  j)assed  extending  its  charter,  and  the 


CIRCUIT  SCENES. 


11 


(|npstion  was,  wliotluM'  this  was  tlic  creation  of  a  new  hank, 
whicli  was  ])i'uliihiio(l  l>y  tht;  coMstitiitioii.  In  apHUJni'- 
the  case  hcl'orc  the  Supreme  Court  ^Ir.  r)Utt(M'He!<l  said: 
••  Mi'.y  it  i)hiaso  the  eoui't.  when  (rod  h'U^thened  out  the  days 
of  old  Ile/ekiah,  was  he  the  same  ohl  Ile/.ekiah  as  hefoi-e  or 
a  new  IIez;'kiah  T' 

In  the  ohien  time  jndu'es,  lawyers,  jurors  and  witnesses 
all  had  to  be  accommodated  at  some  little  hostelry  at  the 
county  seat,  vrhore  it  would  take  two  or  three  tahlefuls  to 
fee(|  all  the  <i^uests;  then  when  the  hell  raiiLf  for  a  meal 
tiler*!  would  he  a  rush  for  the dinin<i" room,  when  n(»nestooil 
u[)on  the  ordiu'  of  their  n•l»in'^^  A  table  was  usually  placed 
near  thedooi-.  ujion  which  the  iiu.^sts  as  th(\v  passed  inthrew 
tlieir  hats  or  wra|)s  in  a  ]»]'omiscuous  pih'.  Mr.  Helm,  a  resi- 
dent lawyer  f)f  Vorkville,  a  man  of  full  habit  and  pi'etty 
iai'n'e  ])i'o|)ortions,  in  ^"oinu^  out  had  some  ditliculty  in  liiid- 
in<>'  his  own  hat,  anil  in  his  ell'orts  ti'ied  on  several  which 
Would  not  tit  him:  all  were  too  small,  for  his  hat  was  neai'ly 
as  l)i«4'  as  a  bee-hive.  He  had  just  laid  down  a  small  hat. 
which  would  i)arely  sit  upon  thetoj)  of  his  head,  and  picked 
u[»  liis  own,  when  .Mr.  lUittei'ii  'Id  cam;'  alon^\  and  claimed 
the  little  ono  which  he  was  about  to  lay  dov.n,  v.lu'U  Mi-. 
IFelm  remarked:  '"  I'rother  lUitterlield,  it  seems  to  me  you 
hav(3  a  very  small  head.  My  hat  would  cover  your  face  as 
well  as  your  head."  "■  Yes.  yes,  I'.rother  Helm,"  said  Ihitter- 
field,  "  you  have  a  vorv  thick  head  but  mine  is  a  irood  deal 
the  louLjest." 

His  wit  was  generally  of  an  unfortunate  kind,  for  it 
usually  partook  of  caustic  sarcasm,  which  h>ft  a  I'anklinu' 
fester  in  the  feelino-s  of  its  object,  and  to  indulge  in  this 
vicious  habit  he  sometimes  could  not  resist  the  temptation 
to  even  endanger  a  cause.  I  recollect  once  when  he  was 
arguing  a  case  before  the  Supreme  Court,  Ste])hen  T. 
Logan,  who  was  from  Kentucky  and  was  a  hiudableadmirei- 
of  the  judiciary  of  that  State,  had  quoted  a  very  ])ei'tinent 
case  from  Pertle's  Digest.  AVhen  IJutterlield  canu'  to 
answer  him,  instead  of  trying  to  explain  away  the  case  he 


IIG 


KAELY  BENCH  AND  BAR  OF  ILLINOIS. 


1 


I'cll  to  ahusinii'  and  ridioiiliiio-  tlio  Kentucky  (•(uirts  in  stich 
a  way  us  to  ho  oH'ciisivo  to  tli(^  admii'ei's  of  the  oiiiinciit 
jialgcs  who  had  adorned  tlio  iR'nclics  of  that  State,  and 
es|)ecially  did  he  ridicule  Perth^'s  l)i;i,est.  "  Wliy,"  said  he, 
••  this  Perth'"s  Digest  may  1)0  jLU'ood  law  south  of  the  Ohio 
river,  hut  whonev(.'r  it  o-ots  north  of  that  stream  it  should 
!»(>  taken  u[»  and  inii)oundod  as  an  estray,  hut  nonum  exci'pt 
a  Kontuckian  woukl  ever  couio  and  claim  the  }>ropert3'  and 
])ay  charges." 

In  ar^niin^^  a  case  once  he  was  met  squarely  in  the  face  hy 
a  statute  j)assed  hy  our  Le<^'islaturo,  and  he  had  nothing  to 
do  hut  to  al)use  the  hiw  and  the  lawmakers  Avho  passed  it. 
It  was  an  old  statute  and  was  evidently  a  surprise  to  him. 
In  his  tirade  a<iainst  the  Le<;-islature  that  passed  the  law,  lie 
drew  ])ictures  of  the  members  (d"  the  General  Assend)ly. 
and  amoni"-  other  thing's  said  :  "Their  onlv  means  of  suj)- 
l)ort  is  to  hunt  coons  and  o<)  to  the  Lei^islater.''  (lie  always 
pronounced  this  and  similar  words  in  tliat  way.)  Judi»o 
hockwood,  who  had  heen  getting  nuid  for  some  time  at  this 
vicious  tirade,  hi'oke  in  aiul  told  ]\Ir.  lUitterfield  that  he 
would  not  sit  there  and  hear  a  co-ordinate  branch  '  l  the 
gitvernuu'ut  so  unjustly  vilified. 

Ihit  let  me  come  back  to  the  Circuit  Courts. 

At  a  term  of  the  Circuit  Cv)urt  of  Peoria  Coun'y  Avhich 
was  held  by  Judge  Ivoerner,  with  v.hom  I  had  exchanged 
circuits  for  the  tinu;  during  Fridley's  administi'ation  as 
state's  attoi'uey,  he  had  indicted  a  man  in  that  court  for 
stealing  a  five  dollar  bank  note,  of  the  value  of  five  doHcO's, 
which  at  that  time  was  a  penitentiary  olfense.  When  the 
note  was  ])roduced  on  the  trial  it  proved  to  he  from  some 
eastern  hank,  and  as  the  larceny  was  clearly  proved,  his 
counsel  directed  their  attention  exclusively  to  reduce  the 
value  of  the  bill  to  less  than  live  dollars,  and  so  save  their 
client  fr'om  the  penitentiary.  They  produc(!(l  some  of  the 
bank  ollicers  bv  whom  they  jiroved  that  that  money  was  at 
a  discount  of  two  or  three  per  cent. 

To   rebut   this,   Fridley  called   one   of    the  jurors,  Mr. 


the 
at 


(JLSTAVrs    Kui;|{.NK|{. 


CIRCUIT  SCENES. 


11 


Stop;  on  Yoris.  wlio  wjis  a  prominont  nioivliantoftlio  place 
Mv.  Voris  t«-stilio(l  that  Jiiost  of  tlio  cunvncy  in  ciiviilatioii 
thoro,  consisted  of  oastorn  hank  notes,  most  of  wliidi,  in- 
cludino-  this  bill,  passed  at  par  inordinary  business  transac- 
tions; that  he  received  it  at  par  at  his  sti>!'e  in  jtavinent  for 
^oods  s(;ld,  and  also  in  payment  for  accounts  and  notes  duo 
hiin.     JJe  introduced  several  of  the  merchants  of  the  place 
who  testilied  to  the  same  thino,  and  that  it  was  oidv  when 
thev  had  to  buy  eastern  exchanoe,  or  Avhen  thev  wanted  to 
,i;vt  s[)ecie  for  a  legal  temk^ror  tiK'like,  that  thev  had  to  pay 
ii  I)remium  when   using-  this  kind  of  money.    ^The  dofon(i- 
aiifs  couns(?l  insisted  strenuously  that  the  statute  meant  gold 
and  silver,  which  was  the    only  legal   tender  at  the  ^inu' 
when  the  limit   was  iixod   Avhich   fixed    the    value   of   the 
things  stolen,  which  determined  whether  the  ollV-nse  should 
1)0  punished  in  the  penitentiary  or  not.     J5ut  Frldlev  was 
•'jiial  to  the  emergency.     In  summing  up  to  the  jui-v  ho 
pointed  out   to   them,  that   it    ,ras  their  province    to'  d.- 
termine  the  value  of   the  goods  taken.     -And,''  said  ho, 
••y(.u,  Mv.  Voris,  and  these  other  merchants   here,  Avould 
take  this  bill  at  ])ar,  in  payment  for  goods  sold  at  vour  store, 
or  for  debts  due  you,  without  thinking  to  shave" your  cus- 
tomer two  or  throe  cents  on  the  dolhir,  but  this  infernal 
rascal  here  ain't  Milling  to  steal  it  at  ].ar !     Such  monstrous 
audacity  should  be  punished  by  a  vear  or  two  extra  in  the 
penitentiary."     This  settled  the  prisonei-'s  case,  but  the  jury 
oidy  gave  him  a  year  of  punishment. 

Once  when  trying  a  case  in  the  Peoria  Circuit  Court  I 
was  ]>rov«jked  tcj  laughter  to  such  a  degree  that  I  was  un- 
able to  c..ntr(jl  it.  The  case  Avas  tried  bv  Wm.  L.  Mnv  on 
one  sule,  and  by  Knolton  on  the  other.  Mav  had  received 
a  fair  education,  but  that  was  all.  lie  was  a  i)olitician  by 
l>rofession,  and  was  a  fairly  good  laAvyer  as  w<'ll.  Knolton 
Avas  a  collegiate  graduate,  but  was  very  uncouth  in  his  man- 
ners and  exceedingly  slovenly  in  his  iiabits.  The  case  in- 
volved the  construction  or  repair  of  a  house,  and  in  the 
course  of  the  trial  some  technical  architectural  terms  wore 


Hi 


iii 

;     I 
I 


118 


EARLY  BENCH  AND  BAR  OF   ILLINOIS. 


used,  one  of  wliicli  was  written  out  iji  the  ])lea(lin;L,^s,  which 
May  had  i'i'e(|uent  oeeasion  to  use  in  the  coui'se  of  his  oross- 
e.xaniination.  This  term  was  not  proiKtiineed  as  it  was 
pi'opei'ly  spelled  in  the  i>U>adin^s.  AV'hehever  he  had  oe- 
easion to  use  this  tei'ni  he  pronounced  it  as  it  was  speih'd. 
WJu'iiever  he  <lid  this  Knolton  woidd  correct  liini  in  th(; 
pronunciation  in  a  h)W  voice,  hut  so  evervl)ody  couhl  hear 
him.  This  was  very  oU'ensive  to  .May,  and  every  time  the 
correction  was  repeated  he  <i"ot  nunhler  and  nnuhler.  He 
had  a  very  fair  complexion  and  sandy  hair.  Finally  his 
lace  <;rew  livid  and  his  red  hair  seemed  to  stand  on  end. 
Kn<»lton  did  not  ohso've  this,  but  kept  on  re])eatin<i' the  cor- 
rection as  often  as  o])poi-tunity  occurred.  At  len<;th  the 
exjjlosion  came,  when  May  jumped  to  his  feet,  his  powerful 
fi'ame  fairly  ti'emhlinu'  with  emotion;  he  leaned  across  the 
tahle  •  't  over  Knolton,  and  brand  ishiuii'  his  lists  he  ex- 
vliii'.'  Perhaps  you  know,  you  say  you  do  I     IVrhaps 

you  are  ri^lit,  you  say  you  are  I  Perhai)s  you  area  learned 
man  you  say  you  are  I  Perhaps  you  have  iu'cn  throuuh 
c()lle«^v,  \  V  sii  ..tuiiave!  Put  1  never  saw  your  diploma, 
and  I  wouldn't  jud<ie  you  had  by  the  way  you  talk."  Knol- 
ton, who  had  not  observed  the  rising'  storm,  tui'ued  ])ai'tly 
around,  and  looking-  into  ^Jilay's  lace  seemed  struck  (hnnb  by 
the  fearful  expression  on  his  countenance  and  his  Avild 
gesticulation,  and  lairlv  crouched  down  as  11  to  avoid  an 
attack  wiiich  he  was  in  nowise  ])repared  to  resist. 

Now,  this  di>es  not  seem  very  lunny  or  lau;j;hable  when 
desci'ibecl  in  woi'ds,  so  it  must  have  been  the  accom|)anyinm' 
incidents  which  made  it  seem  so  supremely  ludicrous  to  me. 
The  sort  ol  climax  which  May  ])oured  out  upon  his  crouch- 
inii'  victim  before  him  was  uttered  verv  rapidlv  amldistinctlv 
with  all  the  loi'ce  and  vehemence  which  his  ra<j;e  could 
inspire.  At  least  I  was  so  overcome  with  la.u<^liter  that  I 
had  to  get  down  beneath  the  bench  as  if  to  j)ick  up  some- 
thin*'-  until  1  could  decentlv  compose  mvself. 

O  lit. 

At  the  proper  season  of  the  year  we  usually  passed  up  the 
river  on  a  steamer  from  Peoria  to  Lacon — the  uext  court — 


CIRCUIT  sci:nes. 


119 


nnd  as  the  vivor  stoainiM's  had  no  regular  tinios  of  passing' 
J'coi'ia,  \v«_'  soiJU'tiiiu's  liad  to  j)i'('|>are  (|ui('Uly  for  the  jour 
lU'V.  At  oii(>  tiint',  when  it  was  aiinounciMl  Ix'forc  the  court 
had  adjournod  tiiat  a  stcamor  hound  uj)  had  arrived.  I  closed 
up  the  husiness  as  soon  as  ))ossil)h'  and  adjourned  the  couit 
ami  hastened  at  once  to  the  hmdiiiii,'.  Mr.  ]\>tors.  who  had 
been  engau'ed  until  the  last  luoinent,  stalled  down  with  thi> 
I'est  of  us.  hut  some  one  remiuih'd  liim  that  he  was  in  his 
sli])j)ers.  which  sent  him  into  a  shoe  store  which  we  passed, 
where  lie  g'ot  a  pair  of  l)oots,  which  wei'e  tii'd  to<''ether  at 
the  stra|)s,  and  he  came  tJ'otting-  after  us  at  tin;  best  s])eed  so 
fat  a  man  couhl  make.  We  all  arrived  in  tinu',  and  when 
we  went  int»J  the  cal)in  the;  tem])erature  of  Mi".  Peters  was 
so  jiioh  tiuit  he  conciuiU'd  to  continue  in  his  slippi>rs.  and 
not  ])ut  on  his  l)oots  until  we  shouhl  ai-rive  at  j.acon.  In 
(hie  tinu!  we  were  all  assiyiied  to  state-rooms  and  went  to 
bed.  tSome  tinu;  in  tiie  coui'sc^  of  tin;  niu'ht  the  watchman 
came  through  tl.'e  cabin  crying  fire.  At  this,  of  course, 
every  one  jumped  up.  I  o])ened  my  state-room  door  to  see 
what  I  could.  At  that  instant  l^eters  burst  out  of  an  a<ljoin- 
ing  room  and  rushed  down  the  cabin  to  the  companionway, 
Avliich  was  a  good  way  otf,  in  his  drawers,  and  one  of  his 
new  l>oots  on  a  foot,  while  the  other  was  dragging  a  ftei'  him, 
hanging  by  the  string  in  the  sti'ii]).  The  hair  on  the  back 
of  his  hea(h;eemed  to  stand  out  as  if  charged  with  electricity, 
and  on  his  countenance  was  an  expression  of  anxiety,  not  U) 
say  terror. 

The  scene  was  so  ludicrous  that  I  believe  if  the  boat  had 
been  on  lii'e  from  stem  to  stern,  I  should  have  laughed  till  I 
ci'ied.  J>y  the  time  he  reached  the  companionway,  oi-  head 
of  the  stairs  which  descended  to  the  lower  deck,  word  <'ame 
that  tiie  lire  was  out,  when  Peters  (juietly  hobbled  back  to 
his  room  in  the  midst  of  a  crowd  of  ])assengers,  who  by  this 
time  got  from  their  state-rooms  into  the  cabin,  mostly  in 
very  light  habiliments.  Then  others  laughed  as  w<>ll  as  1. 
The  fright  was  over  and  all  were  more  or  less  ai  il'tN /tab tile, 


Hi 


m 


120 


KAULY  r.EXCII  AND  R\R  OF  ILLINOIS. 


Avlicii  tlic  liulicrous  frfituros  of   the  scene  coukl  !;<•  well  oh- 
sei'vcd  and  appi'ct'iatcd. 

(^)iiit('  dill'i-rent  feci  in ':-s  were  once  excited  dui'iiiu'  tiic  triiil 
()(' a  case  in  the  Marsliall  CirciiitCourt.  That  (-asc  iiivolvi-d 
a  collision  lictween  the  Prairie  IJird,  Avliich  ])licd  liftwecn 
J*eoiia  and  Peru,  and  a  desceiidinj^-  steanier,  Avhitli  was  tow- 
in<^'  ahjn^-  lier  side  a  barge  loaded  with  nun|)ow(lrr.  As  is 
very  common  in  such  cases,  there  was  great  discre])ancy  in 
the  testimony  between  those  on  the  diU'ei'cnt  boats,  as  to 
their  respective  positions  at  the  time  of  tlu;  collisioti. 
Sevei'al  s|)ortsmen  were  going  up  the  river  on  the  J'raij-ic 
Jlii'd  on  •'  duck  shooting  excursion.  Some  of  them  tcstilicd 
that  when  they  heard  the  shock  of  the  collision,  they  opi'?U'd 
the  windows  of  tlieir  state-i'oonis  on  thepoi't  side,  iiiid  saw 
that  the  boat  was  lying  in  tlio  water  grass  near  the  shore, 
Avliile  the  j)ilot  and  several  others  on  the  descending  i)oat, 
testilied  that  she  Wiis  in  the  middle  of  the  river,  which  was 
her  ])lace;  that  the  Prairie  I>ird  was  ascenfling  as  if  to  pass 
lu'r  on  the  left  hand  side,  but  that  she  suddenly  changed  Iht 
course,  as  if  to  cross  the  river,  and  pass  heron  the  right  hand 
si(h>,  which  brought  her  right  in  front  of  the  bows  of  the 
descending  boat,  so  that  to  avoid  the  collision  was  impossible. 
The  pilot  said  that  before  the  boat  struck,  he  saw  that  the 
barge,  loaded  with  powder,  the  bow  of  which  j)rojected  some 
distance  beyond  that  of  the  r.teamer,  must  inevitably  strike 
the  Prairie  JJird  right  at  the  mouth  of  her  furnaces,  the 
doors  of  which  were  ojcn  and  lightened  nj)  everything 
around  them;  and  he  expected  that  the  powder  would  become 
ignited,  Avhen  both  boats  and  everybody  on  them  must  be 
instantly  blown  to  atoms,  and  that  nothing  saved  them  but 
the  fact  that  the  lines  which  held  the  barge  to  the  boat  gave 
Avay,  when  the  barge  rebounded  and  floated  off  in  the  cui'- 
rent,  an<l  then  his  boat  crashcnl  into  the  other  in  such  a  way 
as  to  force  the  Pmirie  Pird  so  far  onto  his  bows  as  to  hold 
her  there,  and  until  he  backed  his  boat  clear  across  the  river 
and  stop])ed  on  the  other  shore.  The  pilot's  description  of 
the  situation,  and  especially  at  the  time  when  he  realized 


CIRCL'IT  SCENES. 


IL'I 


tli;it  tli(^  l)ar*j^(^  must  criisli  into  tin-  riinmccs  of  the  oilier 
l»o;it,  when  destruction  wcuiUl  he  certain  t(»  all,  was  so  vivid 
and  i-ealistic,  that  I  coid'ess  a  shivei*  ran  thi-ounh  my  whole 
IVame,  and  I  think  that  many  others  ex|){>rienced  a  similar 
sensation. 

Jt  must  indeed  have  been  an  awful  moment  wh(Mi  lie  felt 
certain  that  that  was  to  he  the  last,  not  only  for  himself  hut 
for  so  many  others,  and  then  to  think  what  a  i-evuisioii  of 
feejinu'  must  have  occurred  when  he  saw  the  lines  \n\t  and 
the  iiarn'e  float  innocently  away. 

AVhen  lie  came  to  this  part  of  his  testimony.  T  confess  I 
felt  a  I'elief,  at  least  somewhat  akin  to  that  which  he  ex- 
perienced when  the  incident  occurreil. 


n,i 


XII. 


TRTAL    OF    MU.    I.OVK.IOV. 


In  my  last  article  I  f^ave  an  .account  of  a  trial  which  took 
])lace  in  Peoria  county,  of  a  man  who  wanted  to  steal  cur- 
rency at  a  discount,  which  took  place  before  .lud^c  Koer- 
ner,  with  whom,  as  before  stated,  I  hail  exchanged  circuits 
tiMnporarily.  I  had  also  made  a  similar  exchaiiii'e  at 
another  time  with  Jud<^e  ^'ounu',  and  as  all  the  incidents 
iiiven  in  these  ])apers  are  wi'ittiMi  (vicariously )  fi-om  memory 
alone,  I  freijuently  slide  ovei'  events,  wliich  I  iiiid  to  be  a 
very  convenient  nuxle  of  avoiding-  misstatements  when  my 
recollection  is  indistinct. 

I  can  not  resist  this  o])]iortnnity  to  state  that  the  kind- 
ness and  courtesy  which  I  received  at  the  lian<ls  (»f  the  b:ir 
of  Jud«i-e  Koerner's  circuitandof  his  personal  friends,  while 
I  was  iilling"  his  ])lace  there,  were  very  gratifying-  at  the 
time  and  arc  still  green  in  my  inemorv  after  the  lajise  of 
fortv-five  vears;  nor  can  I  resist  the  inclination  to  state  the 
fact  that  of  the  seventeen  judges  with  whom  I  sat  on  the 
supreme  bench  of  this  State,  Judge  Koerner  an<l  .Judge 
Trumbull  alone  remain,  both  of  whom  possess  the  vigor  and 


'I'l 


I  I'll 


'rr 


122 


EARLY  BKNCII  AND   RAR  OF  ILMN'OIS. 


cljjstirity.  l>()tli  incntal  and  physical,  of  iniddlc-auod  iiion.  and 
tliiit  two  of  us  liave  heen  enalil('d,a  coMsidcrahlc  time  siiico, 
lit  c'('l('I)i'at(!  our  •^•oldcii  wc'd<liii<;s,  ami  that  we  ai'«'  still 
^(»in<:'  oil  toward  another  period  of  those  ha|)|)y  events. 
While  hotli  of  tliese  <;'entlenu'n  are  still  actively  en<;a;4'ed  in 
the  practice  of  the  pi'ofession,  1  must  enjoy  the  luxury  of 
nu'nial  eniploynuMit  in  other  ways,  and  hence  it  is  that  I 
have  tr<tul»led  the  editoi'  and  readers  of  this  journal  with 
these  papers  about  the  hench  and  the  bar  of  the  olden 
times. 

J  will  now  proceed  with  other  events  ficcordin<«:  to  my  best 
recollections. 

At  a  term  of  the  Ciiruit  C'oui't  which  I  held  in  I'ureau 
county,  the  ^I'and  jury  I'eturned  an  indict)iient  a*;ainst  ( )wen 
Lovejoy,  for  assisting;'  a  I'unaway  slave  to  esca|)e.  That  was 
before  the  or<;'anization  of  the  republicaii  |)arty  by  the 
auiMl^amation  or  co-operation  of  the  whi<i's  with  the  abo- 
litionists. J'revious  to  that  time  the  latter  had  beencipially 
held  in  disestcLMU  by  both  ])olitical  ])arties,  f«^r  the  simple 
reason  that  to  have  doiu'  otherwise  would  have  amounted  to 
])olitical  suicide.  The  abolitionists  held  and  maintained 
their  oj)ini()ns  from  the  deepest  conscientious  convictions, 
well  ap])reciatin«>-  that  their  doctrines  must  subject  them  to 
the  charge  of  disloyalty  to  the  constitution  and  laws  of  the 
j^eneral  "government,  which  forbade  tlier.i  to  assist  in  the 
escape  of  runaway  slaves  from  the  slave  States,  an<l  these 
Federal  laws  were  supplemented  by  State  laws,  in  most,  if 
not  all  of  the  free  States,  and  our  black  laws,  as  they  were 
called,  nnmifested  the  greatest  zeal  in  this  direction. 

Indeed,  I  had  been  in  Chicago  but  a  short  time,  when 
some  overzealous  ])erson  entered  a  com])laint  under  our 
statute  against  all  the  negroes  in  town  (some  six  or  eight  in 
nund)er)  for  being  in  the  State  without  free  pa])ers,  which 
was  an  offense  against  the  statutes  as  they  then  stood;  this 
created  consternation  among  these  men,  all  of  whom  liad 
come  in  from  the  Korthern  States,  where  juch  pa])ers  were 
unknown,  and  were  astonished  to  find  that  thev  were  liable 


I 


I     JBii 


CIRCUIT  SCKNKS. 


1 


*j:; 


to  l((>  c'()nvii*t('<l  Jiiul  sold  into  ii  sort  ol'  sliivri'v  lor  tlif  uimt 
of  tlic  evidence  uliieli  tlie  stiitllte  l'e(|liii't'd  of  tlieil-  t'i'eedom. 
The  liiu's  liei'e  made  no  |»i'(»visioii  I'or  such  c'lscs,  I'oi-  the 
reason,  ])rohal>ly,  that  it  ha<l  nevci'  occiin-ed  t(»  the  law- 
makers that  a  ne^i'o  coiiUl  over  come  IVom  aiiv  hut  a  slave 
State. 

The  ('oiinty  ('on»missionei*s' Court  was  then  in  session 
hei'e.  I  sent  each  one  of  my  clients  t(»  hrin^- u|»  witnesses 
to  |»i'<)ve  that  he  was  a  tree  man  and  came  hei-e  lioiii  a  Tree 
State,  and  a|>|)lied  to  the  court  for  free  papei's.  not  Wasinu 
my  a|)|)i  ation  upon  any  statute,  hut  upon  the  very 
necessity  of  the  case.  I5y  this  tim.'  a  lari;e  majority  of  the 
town  and  county  were  from  the  free  States,  while  most  of 
thos(>  from  the  Southern  States  had  no  sympathy  with  a 
|»rosecution  which  was  so  unjust  and  wicked  as  the  (»ne  now 
peiidini;'  hefore  the  ma-^isti'ate  outside.  After  a  h»n<:' and 
hai'd  stru,'4';^le  l>;>foi'e  the  court  it  made  an  order  ui'antiiiii' 
my  motion,  and  1  was  autlujri/ed  t<»  prepai'c  the  certificates 
of  freed<;m  for  each  of  my  clients,  which  Col.  Hamilton 
drew  up  in  the  most  elahorate  foriP.  and  had  <luly  exe- 
cuted, aiul  the  s(-al  of  the  County  Commissioners'  Coui't 
was  attached;  to  this  was  add(>d  the  signature  of  the 
ck'rk  and  of  all  the  memhcrs  of  the  court.  With  these 
cei'tificates  I  hastened  to  the  maji'istrate's  olUce,  whei'e  the 
case  was  ])endino',  and  offered  them  in  evidejic*'  in  defense. 
It  was  objected  that  they  were  not  obtained  in  a  manner 
c(mformablc  to  tiie  statute,  but  the  justice  held  that  they 
were  <^'ood  enoujili  certillcates  for  him,  and  dischar;.:<'d  my 
clients,  each  of  whom  Avalked  proudly  out  of  coui't  with  the 
certilicato  in  his  pocket.  Sec  act  of  1S21»,  >J  :i,  in  Field's 
Kev.  Stat.,  p.  4(54. 

1  niav^  sav  liero  tliat  it  was  very  rare  to  find  an  inimi<i'i'ant 
from  a  shive  State,  who  Avas  not  (juite  as  earnest  to  protect 
a  free  negro  in  all  his  rights  as  lie  was  ti  ii.ive  a  runaway 
slave  returned  to  liis  master.  As  I  liave  said.  Itoth  jiolitical 
])arties  were  anxious  to  avoid  the  charge  of  being  calletl 
abolitionists,  and  manifested  an  ecpial  zeal  for  the  conviction 


1".% 


m 


n 


1"^ 


1 J I 


KAKLV  HKNCII  AND  KAIi  OF  ir.MNolS. 


<»t'  Luvcjoy.  He  was  tli(i  m<i;^L  pi-oiniiiciit  iilxdilioiiist  in  the 
noi'tlicni  |i;(lt  of  the  State,  Jil)l(' iUld  cniii'a^zcous  tu  t lie  !  ist 
<l(';,r|'<'<'.  1I<'  U'l^*  ii.  |)ast<>i'  ol'  a  ('liiii'di  in  I'iMncctnn  w  itii  the 
largest  cuniii't'Liation  ol"  any  in  tlir  ('(Miiily.  all  ot'wlioni  wnc 
pi'ononnccd  aliolilionists,  and  tlici'c  wrrc  many  utlicrs  tlicrr 
who  did  not  lu'lon;;'  to  liis  cliuvcli  or  c-onnrc/zatioii.  l»nt  wlio 
were  scai'ccly  less  aliolitionists  than  he.  and  as  h(»hl  and 
outspoken  on  th(3  snbject.  As  is  usnally  the  case,  this  delia- 
and  outspoivcn  sentiment  en<;'endered  an  «'<|iially  /.eah* 
opposition  to  it,  and  this  stato  of  ])ul»lic  t'eelinu-  in  the 
connty  liad  «'xten(h'd  to  all  the  iiorthei-n  ))art  of  the  State, 
luoi-e  ])i'ononnci'd  in  the  adjoining  eoMiities  than  riiither 
away,  hut  still  active  enough  to  make  the  appt'oachini;-  ti'ial 
a  subj»'ct()f  extensive  interest  and  comment.  Arrangements 
woro  made  lon;^  hcfoivhand,  and  money  sulisci-ilied  to  ItritiL"" 
Alvin  Stewart,  Ji  famous  abolition  lawyer,  from  I'tica.  N.  V., 
as  loadin,<;  counsel  in  the  defense,  and  it  was  well  known  that 
.lames  II,  Collins,  of  ('hica<»'o,  my  f(n-mer  law  partner,  and 
an  ('(pially  ardent  al>olitionist,  would  take  part  in  the  defense 
of  Mr.  Love  joy. 

1  had  kn(»wn  ]\Ir.  Stewart  when  I  was  a  law  student  ' 
I'tica,  and  had  often  l)oen  present  in  coui-t  when  he  w 
trying'  causes.  In  out'  resj)ect,  at  least,  he  was  the  most  ex- 
ti'aordinary  man  1  ever  saw.  His  lace  was  anything  hut 
Iteautiful,  and  there  was  a  mobility  iibout  its  muscles  which 
enabled  him  fairly  to  gesticulate  with  his  counti'uance. 
The  distortions  of  his  lace,  v/liile  sui)remely  ludicrous,  wert' 
always  suggestive,  and  even  brilliant  at  times,  and  never 
approacluMl  in  the  remotest  degree  the  api)eai'ance  of  iml)e- 
cilitv.  His  language  was  Avell  chosei  ,  but  very  odd.  His 
simile*^,  iUid  illustrati<ms  were  incongruous  and  yet  very  ex- 
])ressive.  His  tone  and  accent  Avere  of  the  most  solemn 
character.  Not  a  smile  was  ever  known  to  rest  upon  his 
face,  and  vet  I  will  un<lertake  to  sav  that  no  man  ever 
listened  to  him  for  ten  minutes  without  being  al>solutely 
convulsed  with  uncontrollable  laughter,  no  matter  how 
solemn  or  interesting  his  subject.    After  a  few  sentences  the 


CIHCUIT  Srr.NlvS. 


rjo 


liiiiii'litiT  \v<iiiM  l>(>;iin,  wlit'M  jikIlk'.  j'"".',  I.'iwvci's  .'iiid  llic 
aiKliciicc  would  iill  yicM  tlicinsrlNcs  up  in  hiuijlilcr.  w  li'<|i 
tlicy,  iit  fii'st.  <'oulil  n<»t  rcstriiiii.  and  liuidly  di(hii>t  want  in. 
I  once  liciinl  liini  ari'in' a  very  coniUKiu-ithicc.  Miattcr-ol' liKt 
case  hcrofc  the  Siipicinc  CoUl't  of  Xrw  \'(>rl<.  wlicu  ail  tin- 
Judyt's  U|>on  tlic  licncli  were  fairly  in  conviilsioiis  with 
lauiihtci'.  lie  nrviM-said  a  silly  tliiiii:',  luit  always  tn\(\  hc- 
yitiid  conipaiMson;  it  was  liis  tctiic  and  facial  cxpi'cssiuns 
wliicli  |)i'()Vo|s('d  to  lau<rlitt'i'  (|uit('  as  uiucli  as  what  he  sai<l. 

It  may  n<<t  he  sui'|ii'isinu'.  then,  that  knnwiii!.':  Mr.  Sti-wait 
as  I  did.  I  was  pleased  to  hear  that  he  was  to  take  pai't  in 
the  (h'l'eiist;  oi  l.ovcjoy,  for  I  kiu'W  it  would  atl'ord  him  oc- 
casiiui  for  a  suj-renie  etl'ort  to  display  his  sarcasm,  his 
vitu|)eratioii,  his  deiumciation.  in  lan;^ii:iut',  tone  and  ex 
pressioii  so  dill"er<'n(  fi-om  that  <'V(M'  heard  hefore.  and 
es|»ecially  so  lauuh-provokiuL;',  that  I  was  very  an.\i(»iis  to 
hear  him  a^'aiu,  ami  l»o  a^iain  shakt-n  up  with  laughter  as  I 
had  not  heeii  for  many  years. 

Hut  Stewai-t  di<l  not  c  uie  and  tlie  defense  fell  iqxni  Mr. 
Collins  alone.  The  subject-matter  of  the  trial  was  siillicient 
to  crowd  the  house  every  moment,  eviucinu'  the  deep 
intei'est  felt  throuii'hout  the  (oiumiinity.  The  witnesses 
sworit  were  all  on  oue  side.  The  prosecuti<»n  prove<l  that  a 
large  fat  nen'.'o  woman  was  domiciled  in  Mr.  Lovejoy's 
house  for  several  days,  and  they  olfered  to  prove  l»y  several 
witnesses  that  she  said  she  was  a  slave,  h^'longinu'  to  a  man 
in  .Missouri,  whose  name  and  residence  she  gave,  and  that 
she  had  run,  or  been  assisted,  away,  and  was  on  her  way  to 
Canada  and  fi-eedom,  and  that  Massa  Lovejoy  was  a  mighty 
good  man,  and  helping  heralong;  hut  all  of  this  testimony 
I  of  course  ruled  out,  holding  that  it  was  only  hearsay 
evich'nce,  an<l  especially  that  of  a  person  whom  the  law 
would  not  credit  when  under  oath  (for  then  the  sworn 
testimony  of  a  negro  could  not  be  admitted  against  a  white 
man),  much  less  could  her  unsworn  statements  be  received. 
A  number  of  Avitnesses  were  offered  Avho  luul  conversed 
with  Mr.  Lovejoy,  to  all  of  whom  he  had  stated  that  she 


•fUi 


mK^nmmmi    i   ii 


126 


EARLY  BENXII   AND  BAR  OF  ILLINOIS. 


!'  1 


I 


' 


) 


was  a  woman,  noody  and  in  distress,  and  that  he  Avas  gdin  • 
to  help  her  to  where  she  could  help  herself. 

A  puhlic  nieetin<^-  had  heen  held  to  raise  funds  to  he!])  her 
alonii'.  to  which  Mr.  l.ovejoy  had  made  a  s])eech,  detailinu' 
Ii(;r  sutferiiius  and  necessities,  and  at  Avhich  others  had 
spoken,  detailin*'' her  account  of  her  slavery,  her  sutfei'injis 
and  escajie,  hut  (»f  course  all  this  had  to  he  ruled  out  as  in- 
com])etent  evidence  a<^ainst  i\rr.  Lovejoy ;  indeed,  not  one 
word  was  ])roved  h'om  hcL'inninir  to  end,  showin<»-  that  Mr. 
Lovejoy  had  ever  adnntted  or  intimated  that  the  woman 
was,  or  ever  had  heen,  a  slave.  Every  expression  ])roved  as 
comiiii''  from  him  was  carefullv  "'uarded,  so  as  not  in  anv 
way  to  incriminate  him  as  connected  with  this  woman.  He 
<U>nonnced  slavery  and  slaveholders  in  general  terms,  ])ic- 
tured  the  sutfei'in^s  of  the  slave,  and  declared  in  livid  lan- 
<iuatie  that  it  was  the  duty  of  every  man  who  deserved 
happiness  in  this  world  and  heatitude  in  the  next,  to  con- 
secrete  the  means  uliich  (iod  had  <^'iven  him  to  the  esca})0 
of  slaves  from  their  cruel  Ix^ndage  to  a  ])lace  of  freedoi:;  ; 
hut  for  this  Mr.  Lovejoy  was  not  indicted,  and  so  I  ruled  it 
out  as  incompetent,  although  it  was  im[)ossihle  to  keep  it 
out  in  the  first  instance,  for  counsel  had  a  right  to  prove 
what  he  said  in  his  s])eeches  to  find  if  something  criminat- 
ing could  not  1)0  found  in  them. 

Ahle  counsel  was  employed  to  assist  the  state's  attorney 
in  this  trial,  and  the  case  was  summed  up  most  elahorately, 
hut,  no  douht,  more  for  the  ])er  lit  of  the  audience  than  for 
the  jury.  AVhile  })rohahly  no  ])ers<m  in  the  court  room  ha<l 
the  least  douht  that  ^fr.  Lovejoy  well  knew  that  the  woman 
was  a  slave,  and  as  such  was  helping  her  escape  from  her 
master,  that  he  was  in  fact  ])resident  of  the  Hnthiyromnl 
/'(n'h'Odfl,  as  it  was  called,  hy  which  slaves  were  assisted  to 
escape,  and  its  chief  manager,,  there  lacked  the  legal  evi- 
dence that  this  woman  was  a  slave.  JMr.  Collins  argued  the 
case  with  his  usual  ai)ility,  ])ointing  out  the  entire  insutH- 
ciencv  of  the  evidence  to  justifv  a  conviction. 

In  that  case  1  charged  the  jury  fully  upon  the  evidence 


i'i 


CIRCUIT  SCENES. 


1-27 


iind  tlio  law,  iuliiionisliing  tluMii  that  tlio  cxcitcnu'iit  and 
])rojiHlico  wliicli  mioht  in'i'vadc  the  wliolo  comniiinity,  and 
the  iiK.ral  conviction,  if  tlicy  entertained  such  ci.nviction. 
of  the  defendant's  <,niilt,  should  have  not  the  h>ast  inMucixc 
upon  their  verdict,  if  they  did  not  find  h'^al  oviih-iicc  to 
justify  a  conviction;  that  a  storm  of  excitement  and  i>reju- 
dice  mio-ht  be  ra,u'iny  around  them,  but  they  must  stand  up 
against  it,  like  an  adamantine  rock,  against  which  the  waves 
of  the  sea  dash  without  making-  the  least  imi>ressioii:  that 
unless  there  Avas  legal  evidence  sulticient  to  show,  beyond  a 
reasonable  doubt,  that  this  woman  was  a  sjj'.ve.  tliev  must 
actpiit  the  dofondant;  and  thoy  did  ac![uit  him,  ureativ 
to  the  chagrin  of  the  anti-abolitionists,  and  as  greativ 
to  the  joy  of  Mr.  Lovejoy  and  his  jtartisans.  The  rejoieing 
of  the  latter  was  undoubtedly  the  most  heartfelt  and  siiu-cMv. 
for  they  acted  from  a  deep  and  ccmscientious  conviction 
of  duty,  while  the  feelings  of  the  others  were  more  political 
than  moral. 


I  I  ■ 


XIII. 


AXTI-SLAVERY  TIMES    IN  ILLIXOIS. 

But  the  abolition  spirit  was  by  no  means  confined  to 
Bureau  county;  it  was  equally  earnest  and  zealous  in  por- 
tions of  Putnam  county,  of  which  Jiureau  had  formerlv 
formed  a  part.  Lamoil  settlement  was  situated  about  six 
miles  from  Hennepin  on  the  edg(;  of  (4rand  Prairie.  Within 
the  last  ten  years  this  had  become  a  largo  and  ]n"os|>erous 
settlement,  with  its  schools  and  churches;  with  hardh  an 
exception  the  inhabitants  of  this  neighborhood  were  aboli- 
tionists of  a  very  pronounced  type. 

When  I  opened  a  term  of  the  court  at  Hennepin  the  grand 
jury  Avas  called,  and  when  the  name  of  one  of  the  citizens 
of  Lamoil  was  reached  he  stepped  fi^rward  and  said  :  '".1  udge. 
I  must  decline  to  be  sworn  on  this  grand  jury,  for  mv  con- 
science will  not  allow  mo  to  swear  that  1  will  execute  all 


'i 


i; 


ilia 


12S 


EARLY  13EXC1I  AND  BAR  OF  ILLINOIS. 


1   i! 


the  laws  of  tliis  State.  I  know  that  my  refusal  to  do  tliis 
will  subject  me  to  fine  and  imprisonment,  but  thesi^  I  shall 
oheortully  sulnnit  to  rather  than  violate  my  conscience." 

I  at  onc(!  saw  that  I  had  a  martyr  to  deal  with,  who  was 
and)itious  to  sulfer  for  conscience'  sake,  so  without  another 
woril  1  told  him  to  take  his  scat  and  we  would  see  to  his 
case  later.  The  panel  was  com))leted.  the  jurors  sworn  and 
sent  out,  and  I  went  on  with  the  other  business  of  the  court 
without  any  further  reference  to  the  case  of  the  martyr. 
When  court  oi)ened  the  next  morning"  the  conscientious  juror 
Avas  pi'omptly  on  hand,  an<l  called  u])  his  case  himself,  and 
incjuired  of  me  what  punishment  I  propor,ed  to  inflict  upon 
liini  for  refusini;  to  be  sworn  on  the  g-rand  jury.  1  answered 
him  that  I  had  not  time  to  consider  his  case  yet,  and  should 
not  be  able  to  do  so  for  a  day  or  two,  and  told  him  that  I 
woidd  let  him  know  when  I  wanted  him.  lie  took  his  seat 
with  evident  disappointment,  and  there  he  sat  all  day  with 
a  steadfastness  which  was  now  becoming  interesting.  The 
next  morning  h<;  again  called  up  his  case  and  expressed  an 
anxiety  to  know  what  his  fate  was  to  be,  that  he  might  be 
sutfei'ing  the  punishment  and  have  it  over.  I  again  uAd  him 
that  I  had  not  time  to  consider  the  matter,  but  that  when  I 
wanted  him  I  would  manage  to  let  him  know.  lie  indus- 
triously devoted  another  day  to  holding  down  a  wooden 
seat  in  the  court  room,  and  this  ])rocee(ling  was  rejieated 
every  morning  in  the  week  unti'  Satunlay,  Avhen  he  again 
api)lied  for  sentence,  and  I  told  him  he  might  go  home,  that 
I  <lid  not  think  that  the  State  had  been  a  sufferer  to  an 
ap|)rccial)l(;  amount  by  the  loss  of  his  services,  and  so  I 
should  not  inflict  any  punishment  at  all  upon  him.  llecer- 
tainlv  looked  more  mortified  and  chagrined  at  not  beiny* 
])unished  than  most  persons  do  when  they  are  punished. 

^[r.  Dickey's  father  was  a  Presbyterian  clergyman,  and 
was  in  charge  of  a  church  situated  at  Mount  Palatine,  and 
was  fully  in  sympathy  with  his  people  on  the  subject  of 
shtvery.  One  day  during  the  term  Mr.  Dickey  drove  out  to 
visit  his  f;ithcr,  and  in  the  course  of  cavwi'sation  his  father 


Ij 


CIRCUIT  SCENES. 


1L>1) 


oxprosscd  his  al)lioiTenco  at  tho  in.pris.mniont  wl.icli  liis 
nei^Hihorand  i)arislii<)iu>r  was  suircriiio-  ,„  t\w  jail  at  Uvunv- 
pinforconseionce'sako,an(l  expressed  tlie  <)])i.li„n  tl.at  sueli 
barbarities  in  a  Christian   connnunitv  would  do  more  to 
spread  the  liohtsof  freedom  than  all  tl.e  wor<ls  whieh  could 
be  uttered,  be  they  ever  so  ehxpuMit.     The  old  -vnth.man 
seemed  much  astonished  and  chaorined  when  told  that  his 
good  neiohkn-  luid  not  been  imprisoned  at  all  or  lined   nor 
yet  had  received  a  word  of  reproof  from  the  court  for  ivfus- 
m-  to  be  sworn,  but  had  all  the  week  huno-  ab.u.t  thecourt 
Ih-o-iuo.  daily  tobepunishe<l,a  praverwhid.  was  constantlv 
rolused  l„m.     The  reverend  -entleman's  disappointment  a"t 
this  termination  of  the  affair  was  evich'utlv  n<.t  a  whit  less 
than  was  that  of  the  intended  martvr  himself,  and  he  was 
even  loath  to  believe  that  what  his  s(m  toM  liim  was  true 
He  said  that  it  was  reported  and  o-enerallv  believed  throii.-li- 
out  the  community,  and  such  reports  had  been  sent  al)road 
that  tiie  poor  man  had  been  hurried  off  to  jail,  and  was  there 
lanouishni^-  on  bread  and  water,  for  how  Ion-  a,  p.M-iod  no 
one  could  tell,and  that  nieetin-s  had  been  held  and  ]>ravers 
had  been  offered  that  he  inioht  be  o-iven  strength  and  forti- 
tude to  valiantly  suffer  for  ri-rliteoasnoss'  sake. 

Mr.  Fridley  had  three  indictments  found  bv  a  Peoria 
grand  jury  ao-ainst  one  Jiennett,  a  farmer,  who' lived  h-u-k 
mthe  country;  one  was  for  stealing  a  horse,  another 'for 
stealing  a  wagon,  and  a  third  for  stealin-sonie  other  article 
which  1  do  not  now  remember.  Powell,  Ih-van  and  J{nol- 
ton  were   engaged  to  defend  him,  ami  as  lie  ha<l  a  v.m-v 


unsavory  reputation  in   Peoria  countv  tl 


chanoe   of  venue,  and  In'  a'>-i 


,  they  a])plied  for 


■cement    the  case  was  t 


ferred   to  Putnam  county,  which,  l>v  the  cl 


raU' 


Bui 


eau  and  Marshall  counties,  had 


population  as  to  leave  sufficient  time  to  d 
sional  case  from  other  count 


ij>]>ini>-  off  o, 
so  reduced  its  size  and 


les  in  the  circuit. 


ispose  of  an  occa- 


In  tho  course  of  the  trial  Fridlev  int 


roduced  a  nephew  of 


the  defendant,  who,  upon  thedeath  of  his  fatherand 
had  gone  to  live  with  his  uncle,  who  from  the 


er, 


niotl; 


very  Ijrst 


i;iO 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


- 


liiul  initiated  liim  into  the  profession  of  thieves,  and  the 
ln)y  liad  heeonic  so  ex})ei't  that  hv  his  hands  lie  coniniilti'd 
most  of  Ills  larcenies.  With  great  particularity  and  candor, 
the  1k>\'  detailed  with  minuteness  the  manner  in  which  his 
uncle  conducted  his  criminal  business,  and  the  manner  in 
which  he  had  conducted  the  boy's  education  in  the  sam«' 
line. 

There  was  great  abundance  of  corroboratini?  as  well  as 
direct  evidence,  tending  to  support  tiie  charges  made 
against  I'ennett. 

In  his  summing  up,  Fridlev  drew  a  graphic  picture  of  the 
man  Avho  would  take  his  own  brother's  son,  Avho  was  U'ft 
without  father  or  mother  or  friends  to  care  for  him,  and 
compel  him  to  turn  thief  under  his  own  diabolical  instruc- 
tions. 

After  summing  up  the  case  in  a  very  forcible,  not  to  say 
brilliant  manner,  Fridley  ccMicluded  as  follows:  '•  Uut, 
gentlemen,  what  do  I  do  ?  You  are  going  to  send  this  man 
to  the  ]ienitentiary  for  ten  years  for  stealing  a  Ixtrse.  I 
shall  next  try  him  for  stealing  that  wagon,  and  he  will  go 
up  ten  years  for  that,  and  then  there  is  the  third  indictmejit 
against  him,  which  I  shall  next  try,  and  he  is  sure  of  ten 
years" for  that,  Avhich  is  the  worst  case  of  all  of  them.  This 
makes  thirty  yejirs  of  hard  work,  which  he  owes  to  the 
]>eo})le  of  the  State  of  Illinois,  and  as  I  judge  he  is  now 
aliout  forty  years  of  age,  and  as  but  seventy  ytars  are 
allotted  to  man,  he  can  only  have  time  to  work  out  what 
he  owes  the  State,  so  that  every  minute  I  detain  you  here  I 
am  defrauding  the  people  of  this  State  out  of  the  services 
which  he  owes  them."  Neither  party  asked  any  instruc- 
tions, and  the  jury  was  sent  out  immediately. 

The  next  case  was  called  up  at  once,  and  ]>ennett's  coun- 
sel made  an  effort  to  have  it  continued  or  postponed,  but  as 
no  good  reason  couUl  be  shown,  I  overruled  the  motion,  and 
directed  a  jury  to  be  called.  Just  at  this  moment  the  iirst 
jury  came  in  with  a  verdict  of  guilty  and  ten  years  in  the 
penitentiary. 


,.  !l 


CIRCUIT  SCENES. 


131 


At  tliis  ]K)int  his  connsol  all  witlidi'cw  from  thccaso.  stat- 
in«i^  that  they  ccmld  he  of  iio  i'lirtlicr  soi'vico  to  him,  wiiero 
the  law  was  so  swiftly  administered.  I  then  asked  th(> 
prisoner  if  he  wished  to  employ  c-oiinsel.  lie  answered  no, 
as  lie  ])ro]>osed  to  try  his  own  castas  tliei'eafter.  Ho  did  so 
and  ho  tried  his  case  fairly  well,  an«l  made  a  jiretty  little 
speech  to  the  jury,  rather  ])leading  for  mercy  tiian  denyin^^ 
his  o^nilt.  Fridley  did  not  ])ress  him  hard,  and  tli(»  jury 
l)rou<^-ht  in  a  verdict  of  f;iiilty,  fixin;^  the  ])nnislimontat  live 
years  in  the  ])enitentiarv,  and  Uennett  manifested  a  satis- 
faction in  the  fact  that  he  luid  l);'en  more  successful  in  his 
own  defense  than  his  counsel  had  heen  for  him  in  the  other 
trial. 

Now,  I  forfii'et  whether  Fridley  tried  the  thii'd  case  imme- 
diately thereafter  or  had  it  contimied  and  sti-icUen  from  the 
docket  with  leave  to  reinstate,  hut  I  do  remember  that  in 
passing  the  sentence  I  directed  the  last  live  years  to  com- 
mence on  the  expiration  of  the  first  ton  years. 

When  it  is  remembered  that  I  had  twelve  counties  in  my 
circuit,  in  each  of  Avhich  I  had  to  hold  two  courts  a  yeai'. 
besides  my  Supremo  Court  duties,  and  that  three  of  these 
Avero  large  counties,  Peoria,  La  8alle  and  Kane,  rerpuring 
about  two  weeks  each  at  a  term,  and  that  I  was  detei'mined 
to  clear  every  docket  at  each  term,  it  will  be  readily  ai)pre- 
ciated  that  quick  work  had  to  be  done,  and  no  time  unnec- 
essarily lost.  In  Peoria  county,  especially,  wiiich  wa>  th(> 
largest  countv  in  the  circuit,  we  had  to  be  vorv  industrious; 
there  I  usually  opened  court  at  eight  o'clock  in  the  morn- 
ing, and  with  an  hour's  intermission,  hehl  on  until  dark, 
and  fre(]uently  until  late  at  night.  I  recollect  at  one  time 
that  I  tried  seven  jury  cases  and  received  seven  verdicts  in 
one  forenoon.  Though  all  of  these  cases  were  contested, 
none  of  them  were  of  any  great  importance.  As  a  general 
rule,  questions  of  the  admissibility  of  evidence  Avere  not 
allowed  to  be  argued,  hut  were  decided  as  soon  as  raised, 
and  so  of  all  motions  which  arose  during  the  trial. 

Probably  the  questions  which  arise  at  the  present  tlay  in 


Mi 


".I 

'II 1 


1 


V 


m 


^^f 


■i   Wi 


I    it; 

^1 


1  xo 


EAULY  BENCH  AND  BAR  OF  ILLINOIS. 


our  courts  of  justice  may  he  iiiucli  more  difTicult  than  tlios-,' 
wliicli  wore  tlioii  presented,  but  then  I  never  coukl  atlord 
the  time  to  liear  ar<^uinent  in  support  of  a  ])osition  about 
wliicli  I  entei'tained  no  doubt  in  my  OAvn  mind,  nor  even 
ai^ainst  it  for  any  great  len<>th  of  time,  unless  I  thoujilit 
counsel  wei'e  talkin*^  sense  or  to  tlie  pui'pose.  Let  it  be 
remembei'ed,  again,  that  tlie  circuit  system  prevaiU'd  at  that 
time,  which  comi)elled  everybody  to  think  quickly  and  to 
.tct  prom])tly. 

When  I  iirst  began  to  pi'actice  in  Putnam  county,  as 
stated  in  one  of  the  earlier  numb;^rs  of  this  series,  theie 
was  already  a  pretty  larue  settlement  in  the  ()x-l)ow  Prairie, 
of  menil)ers  of  the  Society  of  Friends,  with  many  of  whom 
I  soon  became  acquainted,  and  when  they  learned  that  T 
was  born  and  brought  up  in  that  denomination,  and  still 
bad  a  great  reverence  for  the  tenets  of  my  father  and  mother, 
they  directly  claimed  me  as  one  of  their  own,  and  seemed  to 
feel  rather  proud  of  me,  and  treated  me  with  the  greatest 
kindness  and  art'ection,  and  sent  me  in  a])})les  and  other 
delicacies,  when  I  attended  court  in  that  county.  Xow, 
fiftv  years  ao-o,  the  men  of  this  denomination  held  it  to  be 
a  matter  of  conscience  to  wear  their  broad-I)r>  'd  hats  on 
jdl  occasions,  whether  in  court,  in  church  or  m  che  drawing- 
room,  and  it  Avas  not  deemed  improper,  if  one  could  enduiv 
the  discomfort,  to  wear  his  hat  at  the  table;  and  there  Avas 
manifestly  great  rejoicing  throughout  that  community,  Avhen 
they  learned  that  I  was  appointed  to  ])reside  in  their  court, 
and  for  the  fii'st  time  they  th;Mi  o1>eyed  summonses  to 
sit  upon  the  juries;  it  was  quite  interesting  to  see,  when  I 
first  opened  court  there,  what  a  considerable  proportion  of 
the  audience  consisted  of  my  Ijrethren,  ill  studiously  covered 
with  their  broad-brimmed  hats,  not  one  of  which  was  re- 
moveil  Avhen  the  court  was  opened.  They  now  felt  at  full 
libertv  Avithout  molestation  to  thus  bear  their  testimonv 
against  the  A'anities  and  ceremonies  of  the  wo /Id,  Avliich  they 
conscientiously  felt  they  Avere  doing  by  neglecdng  to  uncover 
the  head  in  the  presence  of  any  mortal,  however  exalted 


1    •: 


m 


CIRCUIT  SCENES. 


1 .».» 


might  be  his  position.  In  this  thcv  were  f<)lh)wini:-  thf 
cxainplo  of  thoii'  great  iij-ototypcs.  IJai'kU'v,  Fox  aiul  Pciiii, 
who  refused  to  be  uncovered,  even  in  tiie  jireseiiee  of  tiie 
king. 

Of  course  I  aHowed  them  to  indulge  in  tliis  ])e('ulia]'ity  to 
their  heart's  content;  even  to  tlui  extent  of  martyrdom. 
Avliicli  they  sometimes  seemed  to  sutfer  in  very  hot  (hiys  l»y 
wearing  their  luits  without  even  removing  them  to  wipe  oil" 
the  pers])iration  from  their  sweltering  brows.  It  was  almost 
ludicrous  to  see  two  or  three  jurors  in  the  box  thus  covered, 
and  to  see  them  take'  the  aflirmation  which  tliey  did  in  ]>lace 
of  the  oath,  still  wearing  the  uiu-omfoi'tabh?  broad-l»rimmed 
hat.  If  they  were  a  ])eculiar  people,  and  indulged  a  feeling 
of  pritle  without  appreciating  it  by  thus  adhering  to  a  mei'e 
form,  they  were  still  a  conscientious  ]K'ople  of  the  sti'ict«'st 
inteji'ritv  in  all  their  transactions  Avith  their  fellow-men. 
They,  too,  were  abolitionists  of  the  sti'ictest  kind,  and  ju'ided 
themselv(!s  upon  tht;  fact  that  the  foundersof  their  religious 
deiu)mination  more  than  two  hundred  years  ago  were  the 
Jirst  among  Christian  peoples  to  bear  their  testimony  against 
human  shiverv,  and  to  this  thev  liad  a' wavs  adhered  with  the 
tenacity  of  a  reliiiious  tenet.  Thev  oreatlv  rejoiced  to  see 
othei's,  even  at  this  hite  da}^,  rising  up  to  join  them  in  this 
great  work. 

If  they  were  an  obstinate  and  a  stiff-necked  peo|)le.  ready 
to  sacrifice  everything  for  their  beliefs  and  pi'incij)les.  they 
were  e(pially  tenacious  in  nuiintaining  and  upholding  the 
highest  measure  of  ])ersonal  integrity. 

Temj)erance,  too,  was  made  a  ])art  of  tlieir  religion,  which 
they  carried  further  than  the  most  pronounciMl  pi'ohil)ition- 
ist  would  be  refjuired  to  ])ractice  at  tlui  ])resent  day.  It 
was  a  religious  offense  to  knowingly  sell  even  a  buslud  of 
corn  or  of  rye  to  be  distilled  into  whisky,  to  do  which  must 
be  followed  by  rejientance  or  expulsion,  and  that,  too,  wIkmv 
for  the  want  of  transportation  there  were  scarcely  any  other 
markets  for  those  cereals  but  the  distilleries.  But  for  their 
tenacity  to  non-essentials,  such  as  in  dress,  in  language,  in 


Hi 


n 


ii:' 


i'il 


a 


M 


'ill 

m 


VM 


EMILY  BENCH  AND  BAR  OF  ILLINOIS. 


'    t 


fonns.  and  in  innnscnients,  and  tlio  lilvM',  I  bi'licvc  tlioy 
would  1)(',  to-day,  the  ni<wt  mnnt'i'oiis  Cliristian  dcnoniinatittn 
in  tlio  Jiind.  J'ut  lor  their  tenacious  adherence  to  such 
utterly  unini|)ortant  and  nonsensical  actions,  by  which  they 
r<'!>el  from  their  connnunion  their  own  i'isin<'i>eneration,  who 
refuse  to  submit  to  and  be  bound  by  their  unyielding  and 
unaccommodating-  notions,  which  they  call  principles,  they 
would  have  continued  to  «>j'ow  and  })rosperand  ;L;ather  into 
their  fold  from  the  outside  world  large  reinforcements  at- 
tracted to  their  fellowshij)  by  the  excellence  of  what  may  l)e 
strictly  considered  their  reli«;iousand  moral  teachings.  Fa- 
naticism may  assume  various  guises,  and  be  fanaticism  still. 
and  usually  expresses  the  most  sincere  beliefs  of  the  hunuiu 
heart. 

They  refused  to  limit  their  discipline  to  matters  of  relig- 
ion and  moi'als,  but  so  insisted  in  enforcing  a  yoke  upon 
the  necks  of  all  those  who  desired  to  walk  with  them  in 
matters  ])urely  religious  and  moral,  that  an  ever  increas- 
ing number,  of  their  younjicr  nu'uibei's  especially,  walked 
out  from  amonu'  them,  till  now  thev  are  so  diminished  in 
number  that  a  large  i)ercenlage  of  the  people  know  nothing 
of  them.  I  am  still  a  birth-right  member  of  that  denomi- 
nation of  Christians,  for  all  who  are  born  within  the  fold  are 
members  in  full  fellowship,  until  "read  out"  for  some 
breach  of  discipline  unatoned  for  by  expressions  of  penitence 
or  regret,  and  since  my  nuirriage  out  of  the  church,  for 
which  oti'ense,  without  acknowledgment  of  contrition.  I 
should  have  been  lopped  oti'  as  a  branch  from  the  true  vine, 
I  was  never  within  the  jui'isdiction  of  a  meeting  authorized 
to  call  me  to  account,  and  as  thev  could  not  act  without 
jurisdictiijn  of  the  jierson  ami  giving  me  an  o})portunity  to 
re[)ent,  which  I  am  very  sure  1  never  should  have  dt)ne,  I 
am  still  a  member  in  full  standing,  and  nominally,  at  least, 
as  good  a  member  as  the  best  of  them. 

My  friends  in  the  Ox-bow  never  raised  any  question  or 
troubled  themselves  about  this  nuitter,  but  seemed  ever 
pleased  to  extend  to  me  their  griicious  regards,  and  the  neat 


CIRCUIT  SCENES. 


v,rt 


m 


an<]  ))lain  dress  of  both  men  and  women,  witli  wliicli  T  was 
so  familiar  in  the  days  of  my  boyhood,  reminded  me  so 
forcibly  of  tliiit  maternal  love  wliieli  was  ever  <jfl()win^'  in 
my  memory,  tiiat  they  always  looke<l  beantiful  to  m<%  and 
they  still  awaken  memories  so  fond  that  1  trust  thev  will 
ever  continue. 


XIV. 


TUTAL  OF  PHILLIPS  FOU  MlUmCIl. 


'14 


In  the  fall  of  1S42  (mo  Phillips,  a  farmer,  livin<i:  on  Indian 
Creek,  at  the  north  end  of  La  Salle  county,  had  a  dillieulty 
with  his  neij^hbor  of  the  adjoinin;,^  farm  about  cattle  or 
fences  or  s<»methin<>;  of  the  kind,  and  in  the  course  of  the 
conti'oversy  riiillips  shot  and  killed  his  neinhboi-.  1  do  not 
remember  at  what  term  he  was  iinlicted  for  murder,  but  1 
am  (juite  sure  that  the  trial  took  place  at  the  fall  term 
of  1843. 

DurJn<^  the  session  of  lS-12-3  the  Le<;islatnre  ])assed  an 
act  increasing'  the  jamishment  of  manslaughter,  and  repeal- 
ing so  much  of  the  old  law  as  defined  the  punishment  for 
that  crime.  The  previous  ])unishment  for  that  olVense  could 
not  exceed  three  years  in  the  ])enitentiary  and  a  line  of  one 
thousand  dollars,  and  I  had  heard  it  said  that  at  the  samt^ 
term  of  court  one  man  had  l)een  sent  to  the  j)enitentiai-y 
for  one  year  for  killing  another  man,  while  another  culprit 
liad  been  sent  to  the  penitentiary  for  five  years  for  stealing 
a  horse.  But,  be  this  as  it  may,  the  Legislature  did  j)ass  a 
law  repealing  that  part  of  the  statute  which  had  fixed  the 
maximum  punishment  of  manslaughter  at  three  yeai's  im- 
prisonment in  the  ])enitentiarv,  and  inflicting  ancjther  })un- 
ishment  with  a  higher  maximum. 

As  both  Phillips  and  the  deceased  were  well-to-do  farmers, 
and  were  well  known  through  all  that  ]>art  of  the  country, 
ihe  occurrence  created  much  excitement,  Avhich  was  bv  no 
means  couilned  to  the  immediate  neighborhood. 


r3(j 


EARLY  BENCH  AND  DAK  OF  ILLINOIS. 


I  I 


I 


Wliilo  TMiillips  was  not  witliout  his  friends,  (iicv  were, 
liowcvcr,  lai<i('l_v  in  tlio  minority. 

AVIu'n  the  trial  caine  oil'  the  hu'^ro  concourse!  of  citizens 
uho  Hlh'd  th(;  town  testilu-d  to  the  deep  jntei'est  lliat  was 
felt  in  the  niattei'.  1  had  chanj^ed  circuits  with  .Iud<i-(> 
Youn<^-  foi'a  ]»art  of  the  sprin^ti'mi,  and  whih?  he  was  sittin<i^ 
1'or  mo  in  La  Salh^  county  ho  had  bailed  out  the  prisoner, 
which  had  the  ell'ect  of  increasing  the  cUnuor  against 
]'hillips. 

Fri«ll(>y  was  prosecuting  attorney  at  that  time.  AVhetlier 
the  friends  of  the  deceased  had  employed  counsel  to  assist 
him  in  tlie  ])rosecution  I  do  not  remend)er,  hut  my  im])res- 
sion  is  that  ho  was  ahme  in  the  jn'osecution.  I'urple  and 
J)ickey  were  employed  for  the  defense. 

A  jury  was  ol)tained  without  dilhculty,  mostly  from  tlie 
southern  part  of  the  county.  The  homicide  was  clearly 
])roved,  so  there  was  no  serious  question  on  that  point,  and 
the  defense  relied  upon  was  that  tho  killing  was  accidental. 
At  least  two  Avitnesses  saw  tho  transacticm.  The  evidence 
showed  Phillii^s'  cattle  were  in  tho  field  of  tho  deceased, 
■vvho  was  pursuing  them  with  his  dog,  and  sotting  him  onto 
the  cattle  with  great  vehemence.  AVhen  the  defendant  saw 
this  he  seized  his  rifle  and  rushed  out  to  tho  fence  which 
divided  the  two  fields  belonging  to  tho  respective  parties, 
and  lired  the  fatal  shot. 

Tho  defense  insisted  that  the  shot  was  fired  at  the  dog,  and 
that  the  man  Avas  accidentally  hit.  There  was  considerable 
discre})ancy  as  to  the  relative  positions  of  the  nnin  and  tho 
dog,  so  there  were  ])lenty  of  grounds  for  one  party  to  insist 
that  the  man  miu'ht  have  been  hit  bv  a  shot  intended  for  tho 
dog,  while  the  other  insisted  that  they  were  so  far  apart 
that  tho  shot  which  killed  the  man  must  have  been  intended 
for  him. 

Fridley  tried  tho  case  upon  the  theory  that  it  was  mur- 
der, pure  and  simple,  Avhile  Dickey  and  Purple  bent  all  their 
etforts  to  show  that  at  most  it  was  but  mauslaughtor,  and 


Ih 


'r, 


I 


,:i 


AXTIIONV    THORNTON. 

fC.r-Jtniije  of  the  Sit/ttriiie  Cuurt  *»/  ilHiioi 


M 


* 


CIRCUIT  SCKNES. 


i:'" 


u 


it  was  iiiiinilVst  that   tliis  was  tlic  lirst  verdict   tlicy  could 
li(»|M'  to  secure'. 

Of  coin's:  ,  counsel  oti  l>otli  sides  were  well  aware  of  the 
])assaijt'  of  the  new  law  since  the  killinu'  took  place,  hut 
Jieithei'  alluded  to  it  duriii<4'  the  tiial.  I'l  idiey  i'videiitiy 
did  n(,»t  wish  to  coiu'.'ch^  that  in  case  a  verdict  of  inan- 
slauL,diter  sIio;dd  hi' returni'l.  the  judLiuieiit  would  have  to 
he  arrested;  and  the  otiuM'  sid<'  of  course,  would  not  inti- 
nuite  such  a  ivsult  foi*  fe;ii'  it  nii<^lit  I'oi'ce  the  jiiiy  to  detei* 
mine  that  the  honiicich'  was  niurdei"  I'alher  than  to  allow 
the  prisoner  to  cscaiK'  without  ]»unishiuent.  In  my  chac^i'e 
to  the  jui'V,  of  course  1  was  cntii'elv  silent  as  to  that  suit- 
Joct,  for,  us  a  nuitter  <»f  law,  the  jury  had  to  determiiu' 
whether  the  olfensi;  was  minder  or  manslau<iliter.  without 
re^'ar<l  to  the  consi'ipieuces  which  mi^'ht  ioljow  their  con- 
clusion, only  if  they  found  a  verdict  of  manslaughter,  they 
should  ilx  the  tei'in  of  punishment  in  the;  ])enitentiaiy,  not 
to  oxcLVvl  the  J) M'iod  of  thivo  years,  which  was  the  limit 
of  the  old  law.  Tin;  jury  was  sent  out  in  the  course  of  the 
jifteriu)on,  and  jit  the  usual  time  for  udjournment  1  took  a 
recess,  informiiii^  the  sheritF  that  1  would  come  in  and 
receive  the  verdict  should  it  'oe  a^i'i'eed  upon  in  the  course  of 
the  eveninjj;.  I  was  notilied  of  an  ULireement  hv  (jiirht 
o'clock,  and  when  proceedin*^  to  the  court  housti  a  ;L;reat 
nuuw  people  were  on  the  sti-eet  hurrying-  up  to  hear  the 
verdict.  I  was  walkiuLj  with  ^^r.  Dickey.  We  approached 
in  front  of  the  jury  room,  which  was  on  the  second  lloor, 
the  window  of  which  was  open,  and  we  distinctly  heard  a 
\o\u\  peal  of  laughter,  in  wiiich.  apparently,  several  of  the 
jurors  joined. 

Dickey  at  once  clapped  his  hands  in  joy  and  said  there 
was  no  hanging  in  that  laughter,  that  if  they  had  found 
his  client  j'uiltv  of  murder  no  one  of  the  iui'v  would  feel 
like  laughing,  and  so  it  was.  A  verdict  of  manslaughter 
was  rendered  and  the  court  was  adjourned  for  the  day. 
The  next  morning  a  motion  Avasnuide  in  arn>st  of  judgment, 
which,  after  argument,  I  sustained  and  discharged  tlu.^  pris- 


138 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


n 


cnor,  lio](lin<^  tliat  the  law  Avliicli  fixed  the  moasnre  of 
juinisliiiicnt  lor  iiiaiisliuiglitoi'  at  the  time  tliis  ci'iiiie  was 
ooimiiitted  liad  been  repealed  altsolutelv  and  without  any 
saving  clause,  aiul  as  the  new  statute  could  not  have  a 
retroactive  etl'ect,  there  was  no  law  now  in  existence  ])r()- 
vidin*^-  for  the  punishment  of  nianslauj^hter  coniniitted 
heforc  the  repeal  of  the  old  law  and  the  enactment  of  the 
new, 

AVell,now,  this  decision  did  make  a  clamor  of  /^reai  vio- 
lence, to  say  the  least.  On  tiie  si<lewalks  and  at  the  street 
corners  I  was  denounced  in  most  violent  terms  for  turning 
loose  a  murderer,  with  an  encoui'agement  to  hin\  t<j  go  and 
kill  someiiody  else.  Public  meetings  were  hel  I  and  raving 
speeches  were  made,  in  wiiich  I  was  dencmnced  in  certainly 
as  bitter  terms  as  was  Phillips, and  an  juldress  to  (tov.  Ford 
was  ado])ted  pointing  out  jny  untitncNs  for  the  ])lace  to 
which  he  had  a])pointed  me,  and  incjuiring  if  he  could  not 
devise  some  way  to  I'cmove  me  from  the  oliice  which  I  so 
unworthily  occupied.  Jn  due  time  they  received  an  answer 
from  the  governor,  in  which,  I  was  informed,  he  ])retty 
shari)!y  rebuked  them  for  their  unreasoning  clamor,  and  said 
that  they  might  congratulate  themselves  for  having  a  judge 
who  had  the  courage,  in  spite  of  threats  and  denunciations, 
to  declare  the  law  as  it  was;  that  if  I  had  had  the  w<'akiu'ss 
to  yield  to  outside  pressure,  and  refuse  to  arrest  the  judg- 
ment, the  Supreme  Court  would,  v  ithout  a  moment's  hesi- 
tation, have  reversetl  tlic  judgment  and  set  the  prisoner 
free.  After  this,  in  a  very  few  weeks  the  excitement 
quieted  down,  and  I  never,  so  far  as  I  know,  received  a  cen- 
sui'e  for  the  courr.e  I  took  since. 

lie  who  W(juld  creditably  fill  a  judicial  office  must  have 
the  courage  of  his  convictions,  and  act  upon  them  regard- 
less of  all  other  considerations.  lie  must  be  deaf  and  blind 
to  all  outside  influences,  aiul  have  an  eye  single  only  to  duty. 
"When  the  Constitution  of  1848  was  adopted,  making  the 
judiciary  elc^ctive,  I,  with  many  others,  feared  that  it  might 
iiave  a  tendency  to  imi)air  the  indei)endence  of  a  judicial 


III. 


CIRCUIT  SCENES, 


130 


office,  and  lower  it  to  tlie  level  of  the  politician,  and  induce 
at  least  weak  and  ambitious  asjMrants  to  sometimes  war|» 
their  decisions  in  compliance  with  the  demand  <jf  i)opular 
excitement,  as  if  they  feared  ''an  appeal  from  the  (U'cision 
of  the  jud»>e  ujion  tlie  bench  to  the  multitude  in  the  court 
house   yard;"   Imt  experience  has  shown   that  these    fears 
were   practically  <^roundless.     If  a  lirm    and  fearless   dis- 
charge of  duty  has  sometimes  raised  a  |K)j)ular  clamor  and 
denunciation,  with  us,  at  least,  this  is  l)ut  short-lived.     ( "aim 
reflection  must  soon  take  the  |)hice  of  excitement,  when  a 
reaction  will  set  in,  when  approbation  will  take  the  place 
of  denur.ciatii)n,and  re-establish  a  projjcr  e(piilii»rium.     The 
])ublic  ajjpreciates,  scarcely  less  thii.i   the  m()st  thoughtful 
and  conservative  individual,  the  absolute  nec(>ssity  of  a  iirm, 
l)uro   and   courageous  judiciary.      ^^'!.ile   it   may  tolei-ate 
weakness   and  vacillation,  and   even    ju'culation,  in   other 
]>ublic   positions,   it   can   never   be   so  with  the   judiciarv. 
Trabonium  and  l>acon,  perhaps  two  of  the  greatest  legal 
lights  that  ev(>r  illuminated  the  profession,  were  only  sus- 
])ected  of  being  influenced  by  improper  motives,  and  yet 
that  alone  proved  sullicient  to  throw  them  down  iVom  the 
exalted  ])ositions  which  they  held  to  the  lowest  levels,  even 
in   ])ublic   estimation.     If,  in   our   own  times,  similar  sus- 
})icions  had  been  excited  against  a  ju«licial  olHcer,  the  same 
conse(iuence   has   followed,    and   so  1  trust  it  will  ever  be. 
There  are  countries  where  it  is  said  that  the  judicial  oMice 
is  so  corrupted  that  judgments  can  be   bought  with  monev. 
but  that  can  only  be  where  the  standard  of  morality  is  so 
low  that  tie  common  peojjle  have  come  t(t  believe  that  it  is 
a  necessary    iccomi)aniinent  of  oflicial  life.     With   the  in- 
tellig(Miceand  enlightenment  of  our  country,  we  may  hope 
and  believe  that  such  can  never  be  the  case  here,  and  that 
the  standard  of  intelligence  and  integrity   recjuired  of  all 
]Hil>lic  oflicers  will  be  elevated  to  that  measure  now  rcMpiiivd 
for  those  whoadministerour  laws,  rather  than  that  they  will 
l)e  (Iragged  down  to  a  lower  level. 
At  the  time  of  the  trial  of  which  I  have  just  sjtoken.  I 


110 


EARLY  BE>XII  AND  BAR  OF  ILLINOIS. 


Uiis  lK)l<lin<4'  iny  coniniission  by  fi^ulxTnatorijil  apjiointiiiont, 
uliic'li  must  (>xi)iro  at  the  close  of  the  next  General  As- 
semlilv,  1»\'  a  joint  vote  (►f  the  two  houses  of  which  the 
])lace  liad  to  1k^  lliled,  and  it  would  liave  been  more  than 
human  for  me  not  to  have  iiujuired.  in  my  own  mind,  what 
effect  so  nn])oj)ular  a  decision  as  I  was  obli<j:(Ml  to  make 
would  have  on  my  |)(Midiii<j;-  election;  but  so  far  from  haviiiji' 
a  weakeniii<i;'  influence  upon  my  detei'mination  to  dischiir<^'e 
my  duty  fearlessly,  and  to  a<lminister  the  law  as  1  knew  it 
to  be,  it  fixed  me  in  that  determination  more  iirndy  tiian 
ev(M',  if  ])ossibi<».  and  1  al'tei'ward  had  the  satistacti<tn  of 
kno\vin<i'  that  the  course  which  1  then  ])ursue<l  received 
the  a[>i)rohation  and  cordial  support  of  those  wh<»  then 
denounced  me.  Had  I  wavered  one  hair  then,  I  should 
have  deservedly  been  lost  foi'ever. 

Iii/^ht  on  this  ])oint  I  may  refer  to  another  instance  in 
illustration.  When  •^■oin;^'  to  open  the  first  term  of  the  fall 
cii'cuit  in  ls44.  in  Kendall  county,  1  found  the  roads  in  a 
most  hori'ihU;  condition,  showing'  that  no  road  labor  had 
been  bestowed  u])on  them.  That  was  the  wettest  sumnuM' 
that  I  ever  knew  in  this  country.  All  the  sloughs  were 
full  of  water,  and  had  beiMi  tramped  up  until  they  seemed 
to  have  no  bottom,  and  I  myself,  with  a  light  carriage  an<l 
two  horses,  got  stalled  in  a  slough  not  two  miles  from  the 
coui't  house,  aiul  had  to  ]);(ck  my  wife  and  children  out  to 
«lrv  ground,  ami  theii  to  hitch  the  horses  to  the  end  of  a 
])ole,  and  draw  out  th«}  carriage.  If  to  he  covered  liternlly 
with  mud  constitutes  an  elem:Mit  of  l)oauty,  then,  indeed, 
Wiis  I  beautiful  for  once  in  my  life.  AVell,  now.  J  was  out 
of  humor,  and  I  fear  1  contiinied  so  all  the  next  day,  which 
Avas  Sunday,  nor  did  I  feel  very  amiable  when  I  opene«l 
court  on  Monday.  1  was  faii'ly  saturated  with  the  idea 
that  a  county  with  such  I'oads  must  have  a  veiy  shiftless 
j)opulation,  and,  above  all,  must  have  a  very  shiftless  set  of 
I'oadmasters,  so  that  when  the  grand  juiy  was  sworn  I  was 
fully  ]»repared  to  give  tlu'm  a  charge  on  the  subject,  an<l  1 
did  it  to  the  vei'y  best  of  my  ability;  especially  I  pointed 


CIRCUIT  SCENES. 


Ul 


out  to  thciii  that  tlio  itnini^rant  scckiiio'  to  l»iiy  a  fanii.  and 
to  make  a  li()iiu>  for  liimsclf  and  liis  lamily,  if  lie  ever  ^ot 
into  tiieir  comity,  would  oidy  seek  to  net  out  of  it  if  lie 
])ossil)ly  could;  that  lie  necessarily  would  make  u])  his  mind 
that  they  were  all  a  shiftless,  tiilliu^-  set.   with   wiioui    he 
wis.ied  to  have  no  fellowshii):  that   when  he  passed  out  of 
their  county  he  would  shake  their  mud  t'lom  oil"  his  hvt  in 
disgust.     The  result  was  that  heloic   niuiit  the  urand    jurv 
hrought  in  indictments  a<4ainst  every  roati-supervisoi'  in  the 
county,  and  before  1  adjouined  coui't  that  week  i  had   the 
satisfactionoflinino- everyone  for  lU'iilect  of  dutv.     Indeed, 
all   came   in  and    jjleadcd    <iuilty    hut    one.     Fridlev    had 
seconded  my  efforts  with  the  oivj-test  zeal.     He    had    in- 
dicted tliis  man  on  a  l)ad  slou^^h.  which  was  supposed  to  he 
in  his  district,  hut    njion  the  trial    it  was   found   that    this 
l)articular    slou/^-h    was   a   few    rods  over  the  coiintv  line. 
Fridley    circulated   around    for  a    few    minutes,  and  soon 
found  witnesses  hy  wliom  lu^  prov(>d  that  there  wei-e  twoor 
three  other  bad  places  in  the   man's  district,  and  the  jurN. 
after  a  few  minutes*  «h-lil)eration,    returned    a    verdii-t   of 
guilty,  and  I  lined  iiiiii  ten  dollars,  while  the  others  weiv 
all  let  otr  with   live  each.     AVhen  the  cost  of  the   i)rose(u- 
tion  and  of  his  counsel  fee  were  added  to  the  ten  dollars  he 
l)robably  wished  he  had  pleaded  ouijty  like  the  others. 

When  I  adjourned  that  court  and  went  on  mv  wav  to 
Geneva,  I  found  the  road  fairly  linetl  with  men  repairing'  it. 
not  only  in  Kendall  county,  but  in  Kane  also,  which  was 
my  next  county.  This  convinced  both  J-'riiiley  and  me  ih.ii 
the  fame  of  our  work  had  ^(^i,'  beb.re  us.  I  chained  all  the 
i;rand  juri  s  in  my  circuit  tiiat  fall,  in  substantiallv  the 
same  way,  with  e(pially  "^-ood  results.  The  iuHiK'Uce  of  that 
(•anii)aign  on  the  roads  of  that  circuit  was  plainly  observ- 
able, so  Jon^  as  I  held  the  courts  there  at  least. 

Some  of  my  friends  were  very  uneasy  that  I  wi.uld  mak<- 
so  many  enemies  by  the  vigorous  prosecution  which  we  in- 
stituted a«,^ainst  road  supervisors,  that  every  count v  in  the 
circuit  wouhl    send  members  to  the  approaching'    l.e«:isla- 


Ml 


142 


EAULY  BENCH  AND  BAR  OF  ILLINOIS. 


I 


i 


i  n 


ture  wlio  would  vote  ji^ainst  mo;  but  tlio  rPKult  provod  tliiit. 
my  Jictioti  met  with  jiciuM'iil  a])j)r(»lmti(m,  and  uiy  st!-cui:tli 
ill  tlic  cii'cuit  was  uianilcstly  much  increased  l»y  the  course 
which  1  liad  ])Ui'sued. 

I  had  <^ot  thus  far  in  dictatinji^  this  article,  when  T  received 
a  letter  from  Owen  (1.  Lovejoy,  Es([„of  Princeton,  referriui:' 
to  a  former  ]  aper,  in  which  I  ^ave  an  account  of  the  tiiai 
of  his  fathei' for  assistin<^  a  runaway  slave  to  escajie  fi-om 
her  master,  ^[r.  T>ovejoy  says:  "I  have  just  llnislu'd  read- 
in<r  your  I'ecoHcctions  of  the  trial  of  my  father.  ])ul)!islied  iu 
the  last  issue  of  the  Le<ial  News,  and  I  think  you  are  slightly 
mistaken  as  to  some  of  the  evi<lence  in  the  case.  Some  years 
a«^o  I  found  amon<j;'  my  father's  ])a|)(M's  minutes  of  the  evi- 
dence in  that  case,  and  some  of  the  ])oints  of  yourcharf»e  to 
the  jury  in  iny  father's  hand\vritin<i-.  ami  also  a  draft  of  an 
instruction  or  rccjuest  tocharge  in  Mr.  Collins'  handwriting. 
^[y  father  was  indicted  foj*  harboring  an<l  secreting  a  c<'rtain 
neg-)'o  woman,  called  Nancy,  she  then  being  a  slave  and 
owing  service^  and  lahor  to  some  person  to  the  jui'ors  un- 
known, ivsiding  within  some  State,  Territory  (U*  disti'ict  to 
the  jui'oi's  unknown,  I)y  feeding,  clothing  and  comforting 
the  said  Nancy. 

"There  was.  as  you  state,  no  direct  evidence  that  Xancy 
was  a  slavi^,  and  the  prosecuticm  therefore  endeav<>red  to 
convict  by  [)roving  father's  declarations  that  she  was  a  slave. 
One  witness.  Isaac  J)elano,  testitied  that  father,  when  on  his 
w:iy  to  (Treentield.  now  I.a  ^loille,  in  liureau  county,  and 
having  Nancy  in  the  vehicle  with  him,  stoi)])ed  at  his.  Dela- 
no's, house  at  Dover,  and  that  father  told  him.  Delano,  that 
Nancy  wasa  slave  who  had  escaped  from  hei* master.  Delano 
also  testilied  on  cr<»ss-examination.  that  father,  in  the  sanu? 
conversation,  stated  that  hei'  master  was  passing*  from  Ken- 
tucky to  Missoui'i  tiirough  Illinois,  and  while  on  her  way 
Nancy  escaped. 

'•  Mr.  Collins"  insti'uction  reads  that,  'if  the  jury  believe 
from  the  evidence  that  Nancy  was,  before  the  time  chai'ged 
in  the  indictment,  a  slave  in  Kentucky,  and  was  brought 


CIRCUIT  SCENES. 


14:3 


from  tlionce  into  the  State  of  Illinois  l»y  hor  master,  she 
therein'  l)ecame  free  an<l  was  not,  at  the  time  of  theallcuiMl 
liarhoring  and  secreting,  a  slave  as  eharg-ed  in  the  indict- 
ment.' 

"  The  following-  ai'e  the  points  of  your  charge  : 

''  Opinion  of  judne. 

"  '  I'rinciples  important  if  not  the  olfense.  Forget  the 
opinions  of: 

"• '  1st.  ]\rnst  prove  she  was  a  slave,  and  belonged  tos(»me 
])erson  within  jurisdiction. 

'' '  2(1.     Must  have  hari»ore(l  her. 

*";5d.  Must  have  fraudulently  concealed  her.  f(»r  this  is 
the  meaning  of  harhor. 

"  '  4th.     All  confessions  must  be  received. 

'"5th.  If  a  master  voluntarily  bi-ings  a  slave  into  this 
State  the  slave  is  free. 

*• '  (>th.     ]\[ust  showthatslaveryexists  where  master  lives.' 

'' You  will  observe  that  while  the  prosecution  succeeded 
in  proving  that  father  had  stated  that  >.'ancy  was  a  slave, 
the  antidote  went  with  the  ])oison. 

"■In  these  days  when  it  is  ]n'oi)osed  to  liave  the  nei;ro 
dominate  the  white  man  in  some  portions  of  the  riiion.  it 
must  seem  strange  indeed,  to  you,  when  you  re(i»lle('t  that 
forty-five  years  ago  you  presided  in  a  court  where  a  white 
man  was  indicted  for  feeding  and  clothin<:-  a  ne^ress." 

As  Mv.  Lovejoy's  statements  taken  at  the  time  must  be 
received  as  certainly  correct,  so  far  as  they  go,  he  did  not 
pretend  to  state  all  of  the  evidence,  or  all  of  the  instructi(»ns. 
I  now  remember  that  one  witness  <lid  testify  to  statements 
having  been  made  by  iMr.  Lovejoy,  admitting  that  the 
woman  was  a  slave,  I  Avas  at  the  time  imi)i'essed  with  the 
beli(4'  that  the  witness  must  have  b{»en  mistaken  as  to  the 
])urport  of  ]\[r.  Lovejoy's  admission,  and  this  Iclief  was  in- 
spired by  the  extreme  caution  and  ingenuity  shown  by  Mr. 
Lovejoy  in  all  his  otiier  conversations  and  s|)eeclies.  proved 
by  a  great  multitude  of  other  witnesses,  in  wliicli  ho  care- 
fuUv  avoided anv  such  admission. 


M 


144 


EAHLY  DKNCH  AND  IJAR  OB'   ILLINOIS. 


i 


TlicH'  was  jit  that  tiino  a  i^ajxT  ]>ul)lislu>(l  in  Cliicauo. 
ilt'votcd  to  tlic  causi'  of  tlic  aholitionists. called  tlie  Western 
Citizen,  |)ul)lislM!(l  l»y  a  Mr.  Eastman,  and  in  it  the  I.ovejoy 
trial  was  i-eporti'd,  how  fully  I  do  not  remember;  but  [ 
do  renieml)er  that  Mv.  Diekey  (late  Jud<j;'e  Diekey  of  our 
Snpreni!'  Court)  told  ni;'  that  by  reijuest  he  ha;l  prej^ared  a 
synopsis  of  my  char^-e  ti>  the  jur\  for  that  i)aper. 

\o  doubt  tluM'e  is  some  one  livmi;' who  has  the  lilesof  tliat 
paper,  and  I,  at  least,  should  i>e  interested  to  know  what  its 
ri'|)ort  of  the  tiial  was. 

I  had  often  discussed  theqnostion  in  tluM'onferenceroom, 
if  not  elsewhere,  in  which  I  ever  maintained  that  if  a  man 
volnntai-ily  brou;4ht  his  slave  into  Illinois,  the  siave  by  that 
act  became  free,  and  when  I  saw  it  lately  stated  in  a  daily 
pai)ei'  that  I  had  so  instructed  the  jury  in  the  Lovejin'case, 
I  concluded  that  the  authoi' of  the  statement  must  have 
made  it  from  my  known  opinions  on  the  subject,  as  I  have 
no  recolh>ction  that  I  ever  had  the  occasion  to  e.\])ress  my 
\  iews  on  the  subject  ollicially.  nor  <U)  I  now  remember  it; 
but  .Mr.  r.ovejoy's  statement  on  the  subject  must  be  received 
as  conclusive.  As  the  roads  throui^'h  Illinois  froai  som;» 
portions  of  Kentucky  to  Mis.^ouri  were  much  shortei'  than 
any  other  in  the  earlier  years  of  the  State  <;'(»vernment, 
many  slaves  were  thus  transported  across  the  State  without 
(piesiion,  and  autlioi'ities  were  not  wanting'  to  show  that  by 
such  transit  the  slaves  w»M'e  not  manumitted,  and  able  jud<;'es 
in  this  State  adhered  to  that  o[»inion  at  the  time  of  which  I 
am  s[teakinii-. 

As  the  lesson  designed  to  1)0  tau^'ht  by  this  paper  is  th.it 
the  judicial  otKcer  slundd  ever  exercise  his  functions  in  total 
disreii'ard  of  popular  clamor,  but  to  stand  up  maidully  and 
hei'oically,  and  administer  the  law  as  he  has  sworn  to  do  it 
without  regard  to  the  effect  which  it  may  have  U|>on  his 
own  ])opularity,  it  seemed  to  me  that  another  jeference  to 
tho  Lovejoy  trial  was  appropriate. 


il 


CIKCUIT  bCEXES. 


llo 


XV. 


Tl.'IAI.S. 

DurJiio-  Fi'idloy's  adininistrntion  as  state's  attoriK-v.  an 
indictinciit  was   retunu'd  in  (lie  Circuit  (\nivt  of  J.a  Salle 
rounty  airainst  a  man  lor  stealin;,^  a  ealf.     Air.  (^Iovim-  w.as 
employed  lor  the  defense,  and  very  soon  after  the  jui-v  was 
impaneled    I  observed  that  somethini;-  was  the  matter  with 
Fridlcy.     Somethini,'    liad   evidently  occurred    to  pi-ovoke 
lum,  for  he  very  jjlainly  manifested   a  disposition  to  con- 
vict the  man,  rioht  or  wron<,^     Jle  liad  not  pi-oeeeded  far 
with   liis  evidence  heforc;    1  was  satisfied  that  it  was  old r 
a  case  of  mistaken  identity  at  the  most.     A  i.umlier  of  wit- 
nesses were  called  on  each  side,  each  testifying' with  con- 
fhlenco  in  favor  of  tlie  party  wldcli  called  him.     As  the  case 
jirooressed,    Fridley's  determination  to  convict    this    man 
became    more   and    more   manilest,    es))ecially    when    the 
defendant's  evidence  tended  to  show  his  innocence  oi-  that 
lie  liad  taken  the  calf  really  believin<r  it  to  be  his  own,  and 
when  I  became  entirely  convinci'd  that  there  was  no  feloni- 
ous intent  in  the  case  I  turne<l  in  to  help  (llover  just  as  far 
as  I  could  with  any  de<rreeof  jn'opriety,  but  this  oidy  stimu- 
lated Fridley  to  redoubled  exertions  to  secure  a  conviction. 
Glover  and  I  did  the  best  we  could  for  the  (hM'endant,  and 
although  I  had  the  last  speech  to  the  jury  in  the  form  of  a 
charn-e,  Fridley  beat  us  both,  for  the  jury  returned  a  ver- 
dict of  guilty  in  spite  of  us.     When  the  moti<m  was   made 
for  a  new  trial,  Fridley  of  course  declined  to  aigue  to  it, 
for  he  had  accomplished  his  object  in  securing  a  vcidict,and 
this  was  all  he  wanted,  and  for  this  ho  was  especiallv  anxious 
when  he  saw  that  I  was  inclined  to  help  the  defense  and 
secure  an. acquittal. 

I  can  not  now  remember  any  of  the  ingenious  turns  and 
telling  exi)ressions  by  which  he  managed  to  get  the  jui-y  so 
linuly  enlisted  on  his  side  as  to  beat  us  both.     I   only 
10 


ki 


"II 


ii  !;• 


i 

■,    -  •'l 

!     ■  f 

14i> 


EARLY  BENX'II  AND  BAR  OF  ILLINOIS. 


iviiKMnlx'!'  tliiit  tliov  wore  in^^onioiis  iind  t('llin<;,  and  wvvo 
succcsslul  witli  tliiit  jury,  and  even  on  his  iuipassiljle  eouti- 
tiMianec  tlioro  was  an  oxi)rossi()n  of  satisfaction  which 
showed  how  much  he  enjoyed  his  triumph. 

Most  hiwyers  who  have  ])ractice<l  in  tlie  country  will 
rememher  that  it  has  fre<|nently  occurred  that  controversies 
about  the  identity  of  (h)mestic  aninuds  liave  Vien  maintaine*! 
on  hotii  si(k»s,  at  fii'st  with  conH«U'nce,  and  then  witli  bitter- 
ness, and  that  many  witnesses  will  be  brou<^ht  who  testify 
to  the  i(U'ntity  of  an  animal  with  the  same  conlidence  that 
they  would  to  the  identity  of  their  own  children,  but 
directly  opjxjsite  to  eacli  other.  Huch  a  case  was  once  trieil 
before  me  either  in  Kane  or  Kendall  county  (I  do  n<.t 
remember  which),  in  which  the  identity  of  a  calf  was 
involved.  The  usual  number  of  Avitnesses  testified  on  each 
side,  and  with  e(|ual  conlidence,  until  it  was  imjxissible  to 
form  any  satisfactory  conclusi<m  as  to  which  was  rijiht, 
when  finally  the  owner  of  the  cow  and  oi  the  calf  intnn 
duced  them  both  to  maintain  his  claim  to  the  latter.  Jle 
showed  that  when  he  l)rought  the  calf  home  and  turned  it 
in  with  the  cow,  it  at  once  rushed  up  to  her  and  commenced 
suckin«jf,  whicli  she  not  only  suffered  it  to  do,  but  caressed 
and  licked  it  in  the  meantime,  as  if  greatly  satisfied  to  see 
it  aii'ain. 

}s'ow  I  thought  we  had  something  tangible,  upon  which 
some  reliance  might  be  placed,  but  the  other  pai'ty  brought 
up  witnesses,  and  several  of  them,  Avho  testified  that  that 
particular  cow  would  allow  any  calf  to  suck  hei",  and  always 
manifested  an  eipially  maternal  affectiim  for  every  calf  she 
met,  and  licked  and  fondled  all  Avith  great  impartiality,  an«l 
that  that  calf  had  been  suffered  to  suck  several  different 
cows  and  would  claim  that  privilege  of  any  cow  that  it  met. 
All  of  these  witnesses  testified  with  e(pial  confidence,  and  it 
was  manifest  with  equal  integrity  and  sincerity. 

AVliich  way  that  jury  (jnetiscd  in  making  up  their  verdict 
I  do  not  remember,  but  of  course  whichever  way  it  was  that 
verdict  had  to  stand. 


M 


ni- 
di 

•ill 
it's 
M 
i»i'- 

'«> 
lilt 

•lit 

e»l 

(.t 

as 

ch 

to 

It. 

•o- 

lo 

it 

.Ml 

ed 

eo 

L'h 

lit 
at 
vs 
he 
id 
nt 
»t. 
it 


ct 
at 


.  i  I 


M  ;; 


1!'^ 


t  ,:     1 
t  - 
J  ■      1 


T.  LYLE   DICKEY 


't!i  T 


,1i   ! 


i 


>H 


CIRCUIT  SCENES. 


117 


^Fr.  Dick'pv  was  (ni^i'jii^cd  on  one  side  of  tluit  (':i>o  ninl 
]trol)jil»ly  no  jxTson  who  was  familiar  with  him  forty  yciiis 
a;,^o  has  faih.'d  to  hoar  him  I'chito  the;  caso  of  the  lnjvinc  wit- 
nesses, which  lie  was  very  fond  of  tellin«:'.  and  he  did  it 
with  many  amnsint^nneideiits  whicli  I  (h)  not  now  rememlter. 

At  a  term  <)f  the  Circuit  Court  which  I  held  in  Keiuhill 
county,  one  liider  was  indicted  for  muiuh'i"  and  Mr.  Dickey 
C(mducted  th(Ml,;fense.  In  impaneling-  the  jury  i  wiis  struck 
with  the  fact  that  lu^  acce|»ted  several  who  stated  that  they 
had  formed  an  express  opinion  that  his  cli«'nt  was  <iuijty. 
and  ho  afterward  ex|)lained  to  me  that  he  di<l  so  hociiuserd 
his  knowh'doo  of  their  hij^h  inte<iritv,  intelli<;ence  and 
firmness,  from  which  Ik;  felt  sure  that  they  would  cleai-ly 
understand  the  facts  which  would  !);'  testified  to  l»y  the 
witnesses,  and  the  law  as  it  should  he  laid  down  l)y  the 
court,  an<l  would  <^ivo  him  the  fair  henellt  «»f  it  in  making' 
u]>  their  verdict,  and  that  they  would  have  a  controlling- 
influence  with  the  other  jurors.  I'pon  the  trial  it  was 
shown  that  the  prisoner  lived  in  a  log  house  ahout  half  a 
mile  from  the  town  of  (reorovtitwn.  n<)W  Newark,  in  that 
county;  that  he  was  much  ad<licted  to  intemperance,  and 
when  under  the  influence  of  li(|Uor  was  (piari-elsome  and 
c<msidere(l  dan<.^(M'ous;  that  onemorninti'  he  went  to  (ieor<i('- 
town  with  his  rifle  in  his  hand,  and  commenced  drinking, 
and  became  so  much  intoxicated  that  he  commence<l  t<» 
(juarrel  with  several  ])ers(ms,  one  of  whom  ho  shot,  as  it 
was  supposed,  in  a  vital  ])lace,  and  the  ])hysician  who  was 
called  declared  that  ho  could  live  l)ut  a  few  hours  at  the 
most;  yet  contrary  to  all  exjiectations  he  did  recover.  So 
soon  as  he  luul  done  the  sliootin<^'  he  started  for  his  cahin, 
into  which  he  entered  with  his  son.  who  was  hut  a  boy. 
and  securely  barred  the  door. 

In  a  short  time  he  was  followed  l)y  alarf^-e  posse,  consist-, 
injjof  most  of  the  citizens  of  the  town,  who  loudlv  demanded 
that  he  should  surrender  himself  upon  the  char<.je  of  murder. 
This  he  refused  to  do.     They  surrounded  the  house,  and 
parleyed  with  him  a  considerable  time.     They  had  no  war- 


' 


i 


I 


I 


i      •  I 


lis 


i;ai{ia-  ijkncii  and  luii  of  Illinois. 


Dint  I'oi"  liis  iii'fcst.  Mini  1  do  not  rcnicniln'i-  tli.it  tli»  re  \v;is  ;i 
constiililc  oi'  )niiuisti";it(?  in  the  |iiii"ty.  When  lie  rd'iisrd  !<• 
siiri'cndi'r,  juhI  ^avc  them  notice  that  lie  utnihl  dt-IVntl  liim- 
sclf"  to  tlio  liist.  tlic  crowd  made  attempts  to  lireak  into  the 
house.  Some  ^'ot  onti>  the  root',  whih'  others  ^^^ot  a  heavy 
stick  of  timher  and  ]iroceeded  to  hatter  down  tiie  dooi*. 
whereupon  he  fired  his  I'ille,  and  Ivilled  one  of  the  i>attei'inii' 
]>arty.  ]Many  witnesses  wen^  sworn,  and  as  is  always  tlie 
case  in  <iesci'il>in;;  an  exeitinL"*  transaction.  cotisideraMe  dis- 
ei'epancy  was  ohsei'Ved,  especially  as  to  the  details,  hut  the 
un(|nestioned  fact  i'<Mnained  that  the  man  was  in  his  own 
house  with  his  youne-  son;  that  the  d<tor  was  hai-ri'd;  that 
it  was  hattereddown  with  a  stick  of  timher.  and  that  a  man 
who  was  actively  eniiau'cd  in  that  work  was  slmt  and  killed 
l»v  the  pi'isoner  whih'  so  en^iaycd. 

An  incident  occnrr<'d  dining' that  trial  wliich  illustrates 
the  frailty  of  liuman  ohservation  and  of  human  memory. 
One  llavenliill,  a  most  respectahh'  farmer,  and  win)  lived  in 
the  nei^hhorliood,  was  of  the  ])arty  in  |>ursuit  of  tlie  |)ris- 
oner.  who  descrihed  the  incidents  of  the  all'air  with  ^reat 
pai'ticularity  and  manifest  candoi-.  lie  testifed  that  there 
was  a  window  on  the  side  of  the  Ikmis;'  near  the  door,  and 
that  throunh  that  window  he  saw  tin'  prisoner  and  his  son. 
and  <leserihe«l  their  actions  and  doinii'shejore  the  assault  was 
made  upon  tin 'door.  The  acts  thus  descrihed  weresup|)osed 
to  he  damaeiny  to  the  defense.  On  this  point  he  was  veiy 
jtositive  and  very  ])ei-sistent,  and  the  most  riuidci-oss-exa mi- 
nation  only  served  to  show  that  he  could  not  jjossihly  he 
mistaken  that  there  was  a  window  on  that  si<U>  of  the  house 
near  the  d<K>r,  thr(tu«;ii  winch  lie  saw  the  ])risoner  and  his 
son  do  the  acts  which  he  descrihed,  and  he  stated  many  in- 
cidental facts  which  showed  that  on  this  point  he  could  not 
be  mistaken. 

The  m^xt  morninf^,  just  as  T  op  moil  court,  ho  ru-Uiel  into 
the  room  in  manifest  excitement,  and  said  that  he  wished  to 
nuike  an  explanation  to  the  court  and  jury  before  the  case 
proceeded  any  iurther,  which  I  permitted  him  to  do. 


CIRrUIT  SCENES. 


IV.) 


Ho  siiid  tliMt  the  «'vrniii;u'  Ix'Turc  lie  IiimI  Ii:ii1  mii  iiitcrvirw 
uitli  Ml'.  I)ick«'V.  in  \vlii<'li  tlic  liittn- st;ih'<|  to  liiiii  lliiit  lit' 
was  cTi'tjiinlv  iiiistakt'ii  iiltmit  tlicrf  Iti'iii;"'  a,  \viritl(t\v  (»ii  that 
sido  of  the  niltiti;  that  he  hiiiiscit'  had  lately  exaiiiiticd  the 
]»i'('inis«'s,  and  ccftaiidy  knew  that  such  was  the  case,  and 
|„.MM',.(|  of  him  tt»  ^o  and  sec  for  hinisrlf;  that  he  would 
siftcrwai'd  lind  out  that  lit-  was  mistaken  in  his  statements. 
when  it  would  he  too  late  to  ivuret  that  he  had  testilied 
fals»'ly  a,e-ainst  the  life  of  a  fellow-lteiMi^';  that  under  these 
ni't;ent  pei'siiasions  of  Mi-.  Dickey,  he  had  u'ot  ii|>  early  in 
the  moniint^''  and  I'ode  down  to  the  place,  which  was  ten  or 
twelve  tniles  oil",  when,  to  his  utter  astoni>hment,  he  found 
that  he  iiad  heen  mistaken,  and  that  there  was  no  window 
on  that  side  of  the  house,  although  he  had  felt  so  positive 
on  the  ])oint  that  if  his  own  life  iiad  depended  npon  it 
he  woidd  not  have  nnide  the  journey  to  verily  his  recollec- 
tion ui'  ohservation  without  the  persistent  ur;:in^'  of  Mr. 
J  )ickey. 

This  is  anotJKM"  illustration  oj"  the  uni'<'lial»ility  of  human 
memory,  on  which  so  much  «»f  oui-  ri;ihts  of  property,  or  even 
life,  depend.  I  know  in  my  own  case  many  instances  have 
()ccurre<l,  in  wjiich,  it  now  seems  to  m(>,  that  I  could  not 
have  l)een  mistaken,  and  yet  the  pr«»of  isahsolntely  coiivinc- 
int^  that  I  was  mistaken,  and  1  have  no  douht  that  many 
others  can  recall  similar  circumstances.  I  have  a  case  in 
mind  now,  where  it  seems  to  me  that  [  r(>ad  in  J.ewis  tV 
Clarke's  Kxj)e<lition,  hy  I'anl  Alleti,  an  accoimt  of  a  trans- 
action which  occurred  durine^  th(!  \vint(T  of  lsii4  5,  while 
they  resided  at  tlu'ir  foil  near  the  Mandan  Indians,  with 
Avhich  York,  the  colored  servant  of  ('apt.  (lark,  and  an 
Indian  Chief,  were  connected.  I  was  within  the  hist  few 
montlis  (U'scril)in;^'  this  transaction  to  a  fi'ii'nd,who  seemed 
mucii  inter<»sted  in  it,  and  thiid^ini^it  :»=  nld  he  more  interest- 
in*^  to  him  to  read  it  in  the  antlior's  own  words,  so  sorm  as 
I  fonnd  leisure  I  took  down  the  hook,  helievini;-  that  I 
conld  find  the  ])assa«re  in  a  few  minutes,  which,  however,  I 
failed  to  do.      I  then  read  the  account  which  thev  I'avo  of 


'11 

n 


ill 


rr 


ir,() 


EAKLY  JJENCII  AND  BAR  OF  ILLINOIS. 


I  '    i 


!;■' 


tln'ii'  I'csidoncciit  that  place.  <K-('ii|>yiii<^sov('iity-tivt'  pa,i:(S(»l 
the  hditU,  without  rni(liii<i'  a  (k'sci'iption  of  the  iiieiih'iit, 
which  I  so  ch'ai'ly  reiiieiiilu'r.  So  certain  was  1  tliat  it  was 
thei'c,  that  I  read  it  over  carel'ully  three  times,  hiit  without 
liiKliiiii'  it.  Then,  thinUin;;'  it  nii^ht  l»e  in  sonieotlier  jtart  of 
the  ho(,lc.  I  read  th«>  whole  two  vohunes  tiirou^h,  and  can 
hnd  no  aUusion  to  the  ineich'Ut  anywhere.  1  can't  account 
toi'  it.  It  seems  to  me  that  I  can  now  see  the  |  a^e.  Tlie 
inci(h>nt  is  of  such  a  character  that  1  can  not  inia.uine  1  saw 
it  anywhere  else.  Did  I  dream  it  ^  It  seems  as  clearly 
im|)ress(>d  upon  my  mind  as  any  events  of  my  past  lite. 

I  have  since  mentioned  the  iiicident,  which  I  thus  clearly 
i'ecollected,  to  at  least  two  i>'entlen:en.  who  I  know  were 
familiar  with  thewm-k  referred  to,  and  were  leai'ue*!  in  that 
class  of  litei'atni-e  to  which  it  related,  and  they  both  i'ec<»l- 
lect<'d  the  incident  as  1  recolleeted  it,  and  thou<:ht  that  it 
was  in  the  sam<-  book  to  nhich  I  n^fei'.  and  oiu'  of  tiii'm. 
^lr.  K.  H.  Ayer.  of  (Miica<;'o,  who  has  the  linest  libi-ai-y  evei- 
coUeeted  u])on  the  ^«orth  American  Vidians, assured  nu'that 
he  would  soon  ,i>ive  me  a  reference  to  the  passaj^'e;  but  many 
months  lat(>r  he  informed  nu*  that  he  had  not  «tnly  carefully 
examined  the  work  I'efei'ivd  to,  but  all  other  works  in  his 
lil)rary  in  which  het'iou<^ht  it  possil)le  the  passage  could  be 
found,  without  the  h'ast  success.  Still  his  recollection  is  as 
clear  as  mine  that  he  has  read  it  somewheu\  and  it  still 
seems  to  him  as  if  he  found  it  in  Lewis  iV  ("lai'ke's  .lournal, 
in  theii'  account  of  their  residence  amonu'  the  Mandan 
Indians  during'  the  winter  of  L>ti4-r»,  Imt  it  is  not  there; 
nor  can  J  find  it  any  where  else;  yet  it  s<MMnsto  nu',  asbefore 
stated,  that  I  can  see  the  vei'y  part  of  the  pa<i'e  on  which  it 
occunvd;  and  my  friend's  recolhrtion  seems  etjaally  clear 
and  is  eciually  at  fault. 

Alas,  for  human  memoi-y !  It  is  too  frail  to  be  certaiidy 
relied  ui)on,  and  yet  we  mustolteii  depend  'pon  it  to  assert 
riuhts  ortodi'fend  against  wron<i'.  My  e.\p»'rience  convinces 
me  tliat  my  observations  arc  us  good  and  my  niemury  as 


i  :  I 


ClUCUn  SCKNI-X 


l.")! 


i«'liiil)l(>  as  those  of  most  iij<mi.  and  vet  I  l<ii(»\v  tliat    it  can 
not  be  relied  upon  at  all  times. 

The  nian  wliom  liider  had  shot  in  the  town,  ami  who.  it 
was  universally  supposed,  eould  live  hut  a  lew  lioins.  did 
linally  ree.)ver,  and  was  now  as  well  as  ever. 

Mr.  I)iek»\v  in  his  argument  to  the  jurv  |)laeed  his  drffnsi' 
entirely  upon   the  statute  detinin;,''  justilialde  homicide,  con 
taini'd  in  Section   .".li  ol'  the  Criminal  ( 'odic  ;is  found  on   the 
ITtith  l)a^e  of  Field's  llevised  Statutes  <d'   I**."..".,  and   is  now 
contained  in  the  lievised  Statutes <»f  1^74.  Cliaj).  :i^  and  Sec- 
tion 14s.  which  also  (Muhracivs   Section  ."..'5  in  the  i'e\  ision  of 
iN.'J.'i     The  jiart  uj)on  which  he  relied  especially  is  contained 
in  these  words:    "  .liistitialile  homicide  is  the  kiilim:-  of  a 
human  hcjiuii-in  necessary  self-defense  of  hal)itat  ion.  property 
<>!•  person,  who  manifestly  intends  oi- endeavors  hy  \  iolence 
or  surprise  tocommit  a  known  felony.     *     *     '■''     oraij;iinst 
any  pei'son  or  persons  who  manifestly  intend  ;ind  etidejivor 
in  a  violent,  riotous,  or  tu  lultnons  m.imier  to  enter  the 
habitation  of  another  for  the  purpose  of  assaulticu'  <>r  oll'ei' 
in^'  personal  violence  to  any  person  dwelliui,'-  iheieiii."     He 
ex|>atiated  extensively  upon  this  section  of  the  statute,  and 
showeil   how   exactly    it  covered    iJider's  case;   how  he  was 
assailed   in   his  own  dwellin<,^  house  i»y  a   moli,  \\  lio  had   no 
authority  of  law  toarrest  him  ha<l  tliev  met  him  in  the  si  reets. 
much  h       so  wheti   in  his  own   dwellinij  lions*    wi'h    barred 
doors,  ai.'i   warned  to  keep  anay  oi*  lake  t||c  conseipu-nces. 
No  matter  what  justilication  they  mi.dit  have  had  for  th'  ir 
conduct,  had  liider  actually  been  ii'ully  of  murder,  and  they 
no  doubt  believed  he  had.  vet  the  result  showed  that  lie  lia<l 
not  been   >^uilty  of  that   cume.      He  then  explained   to  the 
jury  why  In;  had  accepted  so  many  of  tlcm   \\  ho  liad  ex- 
jiressed  opinions  that  the  pi'isoner  was  uiiilty  of  murder,  and 
he  declared  his  undoubtinii'  belief   that    the    result    would 
vindicate*  his  eoidi<lence  in  theii-  inte;;rity.  intellii^eiiee  and 
lii-mitess  of  character,  which  would  ejialde  them  to  dismiss 
from  their  minds  ju'evituis  <ipinions.  and  ;.!ive  the  pi-isoner 
the  benefit  of  the  hiw  as  they  now  lound  it  to  lie  an<l  as 


I 


w 


?3  ' 

I  I 


152 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


tlicv  W(tiil<l  rccolve  it  from  the  court.  In  niv  cliarfjo  to  the 
jury  J  sMcciiU'tIv  i-cviowi'd  the  evidence,  and  told  tlieiii  that 
the  statute  reli«Ml  u|)oTi  l>v  the  defense  was  aj>i»lieable  to  tiie 
case,  and  tohl  them  it  was  their  duty  to  julniinister  the  hiw 
as  it  exist<'d,  aiul  tol<l  them  that  the  j)risoner  was  on  trial 
for  the  murd(;r  of  the  deceased  and  not  for  shooting  the  man 
that  liad  recovered. 

The  result  showed  that  Dickey  had  not  been  mistaken  in 
the  estimate  which  he  had  formed  of  the  character  of  the 
jurni's  which  he  lia<l  accepted,  for  after  due  delil»ei'ation 
they  brought  in  a  verdict  of  not  guilty  and  the  prisoner  was 
discharged, 

I  do  Hot  remember  that  lie  was  ever  prosecuted  for  assault 
Avith  intent  to  kill,  for  which  he  wouhl  ])robably  iuive  bee; 
convicted,  and  I  think  1  heard  that  soon  after  the  trial   he 
left  the  counti'V, 

There  was  no  excit(Mn(Mit  or  even  comi)laint.  so  far  as  I 
overheard,  that  liider  wasac(|uitted  ;  all  seemed  torec(tgnize 
that,  Iccjmically  at  least,  the  law  was  on  his  side,  and  seemed 
willing  to  give  him  t'.e  benelit  of  it. 


nr 


*<i. 


^ 


14 


CHAKLHS    B.    LAWRENCE. 

KjrJutiftii  of  thf.  Sitfrmf  fSjurt  of  lUinoia. 


■.■i 


VIII. 

THE  COXFKKEN'CE  UOOJf. 
I. 

TiiR  nnririr.TY  OF  EAKi.Y  TKAVKr. — T.rcK  von  it.ack-  timi'  to 

:\IolNT    VKKNoN, 

As  ])ivliininiii'v,  oi- III!  introduction  to  the  first  p;i])!'i' wlnCli 
Ti>r.i|M)s,' to  write  nnd.Ttlietitleot'  "  Tlu'('onf("ivnc(>  IIudiii;" 
in  which  I  sh:i]l  occi!sion;iliy  take  my  ivadcrs  behind  the 
screen  which  conceals  the  most  conlidentiai  and  secivr 
proceedings  <»f  a  court  consisting:  of  nioi'e  tiian  one  juiJuv,  I 
will  <levote  :i  short  space  to  tiie  dilliculties  of  travel  which 
tlu}  judges  »»f  the  courts  luid  to  under<:'o,  in  reachin^i-  the 
places  where  thev  iiad  to  perform  tlieir  ollicial  dutii's.  Tln> 
lirst  term  of  the  court  held  by  the  three  judges  under  the 
Constitution  of  Isis,  was  lixed  in  December  of  that  year  tn 
l>o  held  at  Mount  Vernon,  in  Jelferson  county.  There  were 
no  railroads  then  to  helj)  us  on  the  way.  and  Mount  Vei-non. 
as  thinii-s  then  <>xisted.  would  now  be  considered  in  a  I'cmole 


and  se( 


luded 


part  of  tiie  countrv.     I  went  from  Utt; 


iwa  in 


a  double  buL'-ny,  with  my  wife  and  child,  and  drove  tiirouuh 
the  counti-y  to  Sprin^'lield,  which  occupied  tourdavs.  On 
the  way  I  stopj)cd  at  Washing-ton.  in  Taz-well  count  v.  and 
lield  my  last  Circuit  Court  at  a  sjx'cial  term  which  had  been 
ap|>ointed  by  Jud^c  Treat  to  try  a  criminal  case,  which  I 
had  sent  over  l)v  change  of  venue  from  Teoi-i; 


I  count  \' 


A! 


8])rin^'fieid  I  left  my  wife  and  child  at  (piart(-rs  which  1  had 
si'cured  for  them,  and  tooU  in  Judn-e  Treat,  whom  I  had 
invited  to  ride  with  me  on  to  Mount  Vernon. 

(153) 


fh 


II..; 


:;:;il 


,  I 


il 


IT)! 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


Wo  stiii'tod  from  Sprinj^liehl  on  n  dark,  cloudy  morninir, 
and  before  we  Imd  |)r<>ceeded  half  a  mile  a  heavy  snow 
Ktoi'iii  set  in,  which  proved  to  hi}  thi^  mo.it  severe  that  had 
iK'eii  known  tlu're  for  many  years.  I  drove  a  good  team, 
and  we  pressed  forward  throu'^h  tiie  hlindinii;  storm  with- 
out stoi)i)in<j;  until  we  readied  ^lacoupin  I'oint,  twenty- 
ei;:lit  or  thirty  mil(>s,  by  which  time  the  snow  was  about 
ten  inches  deep,  when  we  were  glad  to  take  shelter,  though 
the  weather  was  not  cold.  The  next  day  we  pushed  on 
towai'<l  (ireenville,  in  I'ond  county,  which  we  reached  the 
se.-ond  night  after,  and  the  next  day  we  reached  Carlyle.  in 
Clinton  county.  Here  one  of  my  horses  was  taken  ill, 
when  I  left  him  and  j>rocurod  another  in  his  place.  The 
snow  was  still  deoj)  antl  the  roads  very  heavy.  Indeed,  for 
more  than  three  (juarters  of  the  way  since  wo  left  Spring- 
IL'ld.  not  a  single  track  was  si'on  from  the  road. 

The  unusual  fall  of  snow  seemed  to  shut  everybody  up, 
and  we  pas.scd  many  log  cabins  in  the  timber  which  bordered 
tlie  j)rairies,  and  in  the  forest  through  which  the  I'oad 
l)asscd.  where  we  ct)uld  see  families  shivering  around  large 
lires  in  their  cabins,  with  both  doors  and  windows  .vide 
open,  and  i)igs  sipiealing  around  on  the  outside  as  if  they, 
loo,  would  be  glad  to  get  near  that  lire. 

Indeeil,  the  peui)le  there  hardly  seemed  to  know  what 
snitw  meant  or  how  to  ])rotect  themselves  from  the  cold, 
and  this  caused  constant  remark  between  us. 

We  had  ox])ected  when  we  left  Springfield  to  reach  ]Mt. 
A'ci'iioii  on  Saturday,  but  here  wo  were  only  at  Carlyle  on 
Saturday  nig'at  v/ith  a  sick  horso  and  a  still  unbroken 
road  bel'ore  us.  We  got  <»ur  new  lior.se  and  made  an  early 
slart  Sunday  m.orning  and  pn.ihed  forv.-ard  at  the  best 
sjteed  we  could;  Ijut  a  considerable  coat  of  snow  was  still  on 
tlie  gi'ound  and  it  was  already  getting  dusk  when  Ave 
r^'ached.  in  the  edge  of  the  timbL'r,  the  brick  farm  house 
of  a  well-to-do  farmer,  who.  we  learned  at  Carlyle,  was  in 
the  habit  of  entertaining  travelers,  and  where  we  could  get 
excellent  quarters  unless  the  good  lady  of  the  house  should 


THE  CONFERENX'E  ROOM. 


]  ')  "> 


lijii)i)on  tolH' outof  liimior,  and  tlicii  we  would  Iiavo  t<»  stav 
out  all  ni^^lit,  if  necessary,  in  a  shtrni.  hd'oi-e  slic  would  let 
lis  into  tlu!  house.  For  many  yeais  I  i'enienil»ei-ed  the 
name  of  this  farmer  and  the  distance  from  ("ai'lyle  to  his 
house  and  from  there  to  Mt.  \'ernon.  hut  I  can  not  state 
thein  now  with  certainty.  1  am  very  coiirhh'Ut  we  were 
still  from  fourti^en  to  ei<>'hteen  miles  from  the  latter  place. 
It  was  raining- hard  and  a  cold  wind  was  l)lowin;r,  and  it 
was  iretting- dark  when  we  drove;  uj)  to  the  fence  in  front 
of  the  house,  where  tlu;  landloi-d  came  out  and  nu'l  us, 
who.  ut>on  our  a]>j»lic:ition  for  enti-rtainment,  with  evident 
end)arrassment,  frankly  told  us  that  his  wife  was  in  a  tan- 
trum and  that  he  could  not  all'ord  us  shelter.  He  told  us 
that  the  nearest  house  was  about  two  miles  ahead,  whei-e 
lived  a  widow  in  a  log  cabin,  and  that  this  was  our  only 
chance  for  that  nij^ht. 

Neither  of  us  had  ever  been  there  before,  but  <'ntreatv 
wasof  noavail;  we  started  on.  Kv<wi  the  snow,  which  would 
have  atl'orded  some  light,  had  disa]>i)(>ared  in  the  course  of 
the  afternoon.  We  found  the  r(»ad  U)  be  narr(»w  ami  wind- 
ing, deeply  gullied,  up  and  down  steep  hills,  and  across 
creeks  now  swollen  with  the  rain,  over  some  of  which  were 
narrow,  cordui-oy  bridges,  and  through  others  we  had  to  lord. 
Wo  had  not  gone  iialf  a  mile  before  pitch  dai'kness  set  in, 
.so  we  could  not  see  a  vestige  of  the  road,  or  even  the  f(»iTst 
trees  which  bolder  it  on  either  side.  Then  one  of  us  had  to 
get  out  and  wade  through  the  mud  in  front  of  the  hors;'s, 
and  witli  our  feet  feel  where  the  road  was  and  see  if  there 
were  uullies  on  either  side,  and  so  we  jthnldi'd  on  for  nu)re 
than  three  hours,  co})ious  rain  falling  all  the  time,  and  the 
(old  wind  increasing  in  violenct^  We  had  to  look  sliai-p  all 
the  latter  ])art  of  the  way,  lest  we  shoidd  ]»a^;s  the  widow's 
cabin  without  observing  it.  At  last  we  did  find  it  along 
tijward  midnight  and  succeede<l  in  arousing  the  widow  and 
her  little  family  of  children,  and  the  brave  woman,  as  sh(> 
was,  admitted  us  without  knowing  whether  we  were  tram|)s 
oi-  honest  men.     Treat  went  in  and  helpetl  to  get  up  a  go(jd 


il 


ir>G 


EARLY  BENCH  AND  BAK  OF  1LLIN(;IS. 


t  . 


liic.  wliilo  I  uiiliitclicd  tli'«  liorsi's  and  took  tliom  to  .1  slicd 
iuross  tlu>  i-oad,  wliicli  partly  protected  tliem  from  the. storm. 
1  found  s(»me  eoiii  for  them  in  acril)  near  hy, and  then  ueiit 
to  the  house,  whei'o  1  found  a  ;;ood  lire  and  s(»mecorn  bread 
andcohl  meat  set  on  the  tal)le  ^vith  a  ]»ot  of  eolfee.  JIumlile 
and  ])Iain  as  it  was,  this  was  a  lu.Nurious  repast;  we  werei 
nearly  famislu'd.  Thero  was  Imt  one  room  in  the  liouse,  in 
which  there  was  a  hi'tl  and  under  it  a  trundle  bed,  where  a 
]»art  of  the  chihb'en  slept. 

Covered  as  we  were  with  mud  and  rain,  we  must  have 
]>resent(Ml  anythin;^  but  a  chai'inini^  si^ht;  but  after  drying 
oui'selvesas  well  as  we  could  bv  the  ijrate  Hr<',  we  mana<:('d 
to  <i-et  into  the  bed.  whih;  the  j^ood  woman  nestled  into  the 
trundle  l)od  with  her  little  ones. 

AVith  the  break  of  day  we  were  astir,  when  T  went  out  to 
feed  and  harness  the  horses,  while  the  landlady  fried  some 
meat,  with  which,  and  some  more  corn  bread,  we  made  our 
Itreakl'ast.  Tlu^  rain  had  sto|)ped  but  the  cold  had  increased 
very  considerably,  and  the  horses,  havin<jr  been  l>ut  partially 
])rotected  fi'oni  the  storm  and  still  wet  and  shiverin*^,  were 
evidently  in  bad  humor.  However,  1  nianaj^ed  to  hitch 
them  to  the  vehicle,  into  which  we  climbed,  havin«^  com- 
}>ensated  the  woman  iii)erally  for  her  kind  entertainment, 
ivllectin<^  shai'ply  u\»m  the  contrast  between  lier  kindly 
hospitality,  and  the  conduct  of  the  rich  farmer's  wif(>,  wIm» 
had  refused  us  shelter  undei"  such  forbiddin<i- circumstances. 

AVell,  there  are  many  good  women  in  this  world,  while 
there  are  some  who  are  not  so  good;  and  we  really  thought 
that  her  husband  was  more  to  bo  pitied  in  the  long  run 
than  we  were. 

When  we  started  up  to  pursue  our  jcuirney,  the  new  liorse. 
which  had  evidently  been  used  to  better  treatment,  laid  back 
his  ears  and  refusinl  to  budge  an  inch.  I  did  not  thrash 
Inm,  and  whip  him,  as  one  might  have  been  inclined  to  do, 
but  got  out  and  got  to  his  head  and  ])etted  him  and  coaxed 
him  till  he  seemed  to  have  attained  a  better  humor,  when  I 
in  and  he  started  up  and  went  along  very  cheerfully; 


got 


THE  CONFERENCK  HOOM. 


1.'7 


iii(lc;'(l,  lie  iictt'd  as  if  lio  Would  like  to  have  taken  n  I'lin  foi- 
awliile.  We  |»m'sii('(loiir  wayslowly  Imt  dili^ciitlv  tliroiinli 
the  muddy  t'ofi'st  road,  and  reju'hcd  Mt.  \'('rnon  soon  alter 
noon,  wliero  wo  found  Jud;[^o  Trund)ull,  who  liad  tirrived 
I H' fore  us. 

After  we  IumI  <i'ot  our  dinners  wo  ojMMied  the  court,  and 
this  was  the  lirst  court  ojiened  uiiih-r  the  new   eer.stitutien, 

1  Iiavi'  heen  thus  particular  in  (h'scrihinu' our  lirst  journev 
to  ^rt.  Vernon  tiiat  our  succi'ssors  of  the  Ik'hcIi  and  har  of 
th«?  present  day  ini^ht  know  how  we  were  ohjiucd  to  travel 
to  attend  our  courts  forty  Vi^irs  aj,^). 

At  this  first  term  of  the  coui't  we  were  re(|uired  liv  tlie 
constitution  to  cast  lots  for  terms  to  he  held  hy  each  under 
the  lirst  election,  which  should  lie  thre(»,  six.  or  nine  vears. 

Some  mendx'i's  of  the  har  had  expi-essed  the  (»pinion,  oi- 
at  least  the  ex))ectation,  that  this  pi-oceedinu'  would  i)e  had 
in  open  court  in  the  ])res<MU'e  of  the  har  and  such  other  per- 
sons as  sliould  choose  to  attend,  hut  we  determined  otlu'r- 
wise;  so  after  the  court  had  i)een  opeiKMl  on  the  lii'st  dav 
without  transacting-  any  husiness  of  impoi'tance,  the  court 
was  adjourned  until  the  next  day,  .ludire  Treat  presidium 
for  the  time.  After  the  adjournment  of  thecoui-t  we  assem- 
hled  ])rivately  in  our  room  at  (ii'ant's,  where  we  all  stopped. 
and  proceeded  todis|talch  that  duty.  Three  stri|)s  of  ))a|ier 
were  prepared  hy  Judn-e  Trumhull.  On  one  of  these  .Indue 
Treat  wrote  the  li<i'ure  three,  <m  another  the  li^^ure  six,  and 
on  another  the  figure  nine,  and  I  thiidc  f  rolled  or  twisted 
them  U]),  as  near  alike  as  ])ossihle,  without  knowing  the 
Ji<4-ure  that  was  upon  either,  and  ])laci'd  tliem  in  a  hat.  It 
was  aii'ived  that  eacli  should  draw  one  of  the  pieces  of  |»aper 
from  fht}' hat,  and  tiiat  the  ti<j:ure  found  upon  it  sliould 
determine  the  time  duriufj^  which  his  commission  shouhl  run. 
.1  ud'i'e  Treat  drew  the  first  pa])erand  upon  it  the  liuiiro  nine 
was  written.  I  drew  the  second  and  upon  it  the  Moure  six 
Avas  written,  and  of  course  TrumlniU  di'ew  the  last.  (»n  which 
was  written  the  li<iure  three,  and  so  our  respective  tei-ms  of 
oltice  were  decided  under  that  constitution,  wiiicli  also  pro- 


I 


(I 


l.").S 


EARLY  HENCII  AND  MAK  OF  ILLINOIS. 


!  ( 


I      i     "  I:  '  '    I 


\  i<l('<l  tliiit  tlio  one  who  <li'('\v  tin'  loiu^-ost  iorm  should  he  the 
lifst  chid'  justice  (lurin<^  his  term,  ainl  that  jiftcrwiii'd  the 
iudtte  li(»hliiiir  th»(  ohU'st  counnissiou  should  he  the  chief 
justice;  iiud  so  it  was  that  -lud^e  Treat  i»ecaiM<>  the  lirst 
chief  justice  of  that  couft  uiidei- the  Constitution  of  Is4s. 
.Iud;jre  Treat  then  drew  uj)  an  order  recitin*;  these  facts,  and 
statin^^  these  results,  which  upon  the  opening  of  the  court  the 
next  moi-ninLr,  was  entered. 

Some  dis;ippointment  was  expj'<'ssed  that  this  imj)ortant 
pr<tc«'ediug  had  iteeii  transacted  in  so  (piiet  and  secret  a  man- 
nei'.  l»!it  thei'(!  was  no  help  for  it;  some  sugji'estetl  that  it 
looked  a  little  as  if  a  l>ai';>'ain  had  been  ari'ived  at  hetween 
us  as  to  what  the  result  should  he,  an«l  in  sujiport  of  this  it 
was  su. direst ed  that  Ti'eat.  who  drew  the  longest  term,  and 
thus  hecame  chief  justice,  had  h(H'n  for  the  longest  time  u 
nu'ud>er  of  the  Supreme  Court,  while  I,  who  drew  the  mid- 
dle term,  ha<l  hi'en  a  memher  of  the  old  cou!"t  for  six  years, 
while  Trumbull,  who  di-ew  the  three  years  term,  now  went 
on  the  hcnch  foi-  the  lirst  time;  and  so  it  was  thought  that 
as  foi'tunehad  deci<led  as  most  men  cognizant  of  these  facts 
would  have  thought  it  most  appi'oi)i'ij!te  that  it  should 
he  determiiuvl,  it  looked  a  little  as  if  foi'tune  had  been 
helped  out  by  an  agi'oonuMit;  but  this  susj)icion  was  entirely 
gratuitous,  as  no  agi'eenuMit  whatever  had  been  suggested 
between  us  on  the  subject.  Fortune  decided  the  matter  as 
she  saw  (it,  anil  we  all  agreed  that  she  luul  decided  wis«'ly. 
At  this  fii'st  term  of  the  Supremo  Court  of  three  judges, 
which  lasted  but  a  single  wei^k,  some  important  cases  were 
argued,  and  I  may  now  refer  to  that  of  The  lVo))le  ex  rel. 
V.  Reynolds,  .'»th  (iilman  I,  which  involved  the  constitution- 
ality of  a  legislative  act.  The  Legislature  had  passed  a  law 
ju'oviding  for  the  division  of  (iallatin  county,  but  it  also 
pi'ovided  for  an  election  to  be  held  in  that  county  to  deter- 
mine wlu'therthe  law  s  louhl  take  effect  or  not. 

Several  similar  laws  had  been  ])asse(l  and  executed  in  this 
State,  but  two  decisions  had  l)een  made,  one  by  the  Sujjromo 
Court  of  Pennsylvania,  and  tlie  other  by  the  Supreme  Court 


TIIK  ('ONFi:i{i:\CE  IIOO.M. 


l.-.il 


(»f  I)('lii\v;in\  wliich  luul  Ihmmi  lately  |tiil»lislic(l  in  a  law  jour 
iial,  l)(»tli  tlenyin^  the  coiistitutifdiality  (»!'  thr  acts  uliidi 
iiutlioi'izcd  the  votci's  <>r  individual  counties  to  <leterniine  liv 
tlieii"  votes  whether  the  sale  of  sjiiritnous  li(|iioi-s  in  tlicii- 
counties  should  ho  prohihited  oi-  nctt.  and  this  upon  the 
ground  that  it  was  a  deleuation  hy  the  Leiiisiature  ol' 
legislative  powei'S  to  the  Voters  of  the  counties.  Tlios*' 
coiii'ts  deemed  this  a  most  dan^^'efous  attenipt  to  esl.ih- 
lish  ;i  ))uro  democracy,  which  would  l)e  as  dauiit  roiis  to  a 
I'epulilican  form  of  <j^(>v<M'nment  as  an  ahsolute  uionavchw  op 
at  least,  a  lon»j^  stride  in  that  direction.  There  was  no  dciu 
U}'^  the  fact  that  these  cases  W(>re  lairly  in  point,  and  th.it 
they  could  not,  without  »|uilil)lin^-.  Iieevaded.  If  the  people 
could  not  1m^  authorized  to  determine  l»y  their  votes  whetliei- 
the  sale  of  spii'ituous  liipiors  in  their  counties  should  l»e  pro- 
hihitod  or  not,  then  certainly  it  wasunc<»nstitutional  foi-  the 
Le<4'islatu.o  to  autlioriz«>  the  jM'ojile  of  the  county  toilcter 
mine  i)y  their  votes  whether  or  not  the  county  should  he 
divided;  and  I  was  instructed  to  pre|iare  an  opinion  directiv 
overridinii'  those  cases  and  maintaininu'  the  constitut  ionalit  \' 
of  the  law  in  (|uestion. 

I  did  so,  assiynin*^'  reasons  for  the  decision  which  wei-e 
ai)provtMl  by  the  other  members  of  the  court,  and  so  far  as 
I  know,  no  {]uesti<jn  has  boon  made  in  this  State  of  the  cor- 
rectness of  our  conclusions. 

Sul>se(puMit]y  I  understood  the  Su])reme  Toui't  of  M'wh- 
i<;'an  made  a  deci:iion  which  practically  overruled  this  case, 
although,  I  Ijclieve,  it  attenii)ted  to  draw  a  distinction  be- 
tween their  case  ami  ours.  And  I  think  about  this  time  a 
similar  (piestion  arose  in  New  York,  in  which  the  decisions 
in  Pennsylvania  and  Delav.-aro  v.-ere  said  to  have  been  foj- 
h)wed;  I  have  never  hunted  them  uj).  and  socan  not  speak- 
positively  on  the  subject,  l)Ut  I  must  be  allowed  to  express 
a  doubt  whether,  in  cither  of  those  States,  it  is  now  held  to 
be  unconstitutional  to  ])ass  a  law  authorizing-  the  voters  in 
a  h)cal  municipality  to  determine  by  their  votes  whether  or 
not  ardent  sj)irits  shall  be  sold  within  their  limits. 


■iti 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


I.I 


I^IM    §15 

lU 

u 


lU 


14.0 


IL25  HI  1.4 


i 


■  22 

■  2.0 

11.6 


Fhotographic 
.Sciences 
Corporation 


a>^ 


4 


f\ 


v> 


^ 


Is^" 


23  WBT  MAIN  STRUT 

VinSTIIt,N.Y.  I4SM 

(716)«7a-4S03 


■>'■   V. 


IGO 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


Tlio  case  of  The  People  v.  The  City  of  St.  Louis  Avas 
heai'd  at  the  next  session  of  the  court,  at  tlie  Decomboi' 
tenn,  1848,  at  S])ringlieltl,  in  Avhich  Trumbull  did  not  sit, 
haviny  been  counsel  in  the  case,  and  the  record  was  assigned 
to  nie  to  ])repare  the  opinion.  It  was  a  bill  in  chancery  to 
restrain  the  city  of  St.  Louis  and  many  individuals  from 
committing  a  nuisance  by  filling  up  the  channel  of  the  ]\Iissis 
sii)]n  river,  flowing  between  J>loo(ly  Island  and  the  main 
land  at  East  St.  Louis.  The  main  channel  of  the  river  Avas 
west  of  Bloody  Island^  thus  leaving  the  island  within  this 
State,  but  the  channel  cast  of  the  island,  through  which 
two  fifths  of  the  water  of  the  river  flowed,  Avas  not  so  deej) 
or  so  broad  as  the  main  channel;  still  it  was  navigable  for 
the  iiglitc'' class  of  steamers,  barges  and  other  water  craft 
in  i.  !  oidinary  stage  of  water,  and  in  fact  was  soon  navi- 
gat  ;    .!;'""e  or  less  constantly. 

The  (  :ioroachments  upon  the  river  on  the  Illinois  shore 
above  !'>loody  Island  were  such  as  to  threaten  to  cut  a  new 
chann^'l  cast  of  the  island,  and  thus  deprive  the  city  of  St. 
Louis  of  the  benefits  of  the  deeper  channel,  which  it  then 
enjoyed,  and  this  avouIJ  undoubtedly  have  been  a  terriijle 
calamity  to  that  city. 

To  avert  this  threatencvl  danger  St.  Louis  made  arranjre- 
nvnts  with  the  riparian  owners  on  the  Illinois  shore,  and 
l)roceeded  to  fill  up  that  channel  between  the  island  and 
the  main  land  in  such  a  way  that  if  it  ever  had  been  com- 
])lcted  it  Avould  have  been  impossible  to  ever  have  removed 
the  obstruction,  and  this  without  having  applied  to  the  Illi- 
nois Legislature  to  do  so;  the  bill  was  iiled  to  restrain  this 
action  on  the  ground  that  it  was  a  nuisance  to  obstruct  a 
l)ublic  hiuhwav  Avithin  the  State. 

The  Circuit  Court  of  St.  Clair  County  refused  to  grant  the 
injunction,  and  the  case  AA'as  brought  to  the  Su])reme  Court 
In'  ap})eal.  It  may  bo  readily  understood  tliat  a  most 
intense  interest  was  felt  by  the  citizens  of  St.  Louis  while 
the  case  Avas  pending  in  our  court,  and  many  of  its  able 


1 


THE  CO:>FERENCE  ROOM. 


](•>: 


lawyers  and  ])romiiicnt  t'.'/.  'is  camo  up  to  r[)rin<j,ri;-l(l  to 
Avatcli  the  ])rocee(lings. 

The  case  was  argued  l)efore  ns  l>y  P.  T«  Foiike  for  tlie 
a]>])ellants,  and  1)V  C'runi  and  J»lennerliassett  for  St.  l.oiiis. 
Many  important  questions  were  raised  and  discussed,  hut 
the  one  of  greatest  interest  was,  wluit  were  the  jurisdictions 
and  powers  of  tlie  States  through  wliicli,  or  ah)ng  tiic  bor- 
ders of  which,  the  ]\Ii.ssissi]>i)i  river  flows. 

It  became  my  duty  to  write  the  opinion  of  the  court  in 
this  case,  and  I  confess  I  a])proaciied  it  with  soinedilHiU>nce. 
The  princi])al  question  which  created  solicitude  in  oui' 
minds  in  considering  the  case  was  to  determine  the  rights 
and  powers,  or  the  jurisdiction  the  several  States  in  whose 
Imundaries  a  part  of  this  river  lies,  have  over  th(^  bed 
of  that  stream.  After  much  consideration  we  decid(nl  that 
the  IMississippi  river  was  a  navigable  iiighway.  under  the 
absolute  control  of  the  State,  as  much  as  are  the  public 
roads  on  land,  restricted  and  qualitied  only  by  the  S[)anish 
treaty  and  l)y  the  ordinance  of  1787,  which  secures  to  all 
the  citizens  of  the  United  States  the  free  navigation  of  a 
river,  without  tax  or  toll.  If  such  navigation  is  maintained, 
then  the  State  may  do  what  it  ])leases  with  the  bed  of  a 
river.  It  may  till  up  all  its  chaniiels  except  tlie  nuiin  chan- 
nel in  the  navigation,  in  which  all  the  citizens  of  the  rnited 
States  have  an  interest  and  a  right.  I>ut  no  individual  or 
corporation,  without  the  sanction  of  the  State,  has  a  right  to 
obstruct  any  part  of  it,  any  more  than  they  would  have  the 
right  to  obstruct  any  public  highway  or  land,  without  legal 
authority  or  consent.  That  river  as  well  as  all  other 
navigable  rivers  running  into  it  are  public  highways,  and 
as  such  are  subject  to  State  control.  The  State  has  even 
the  right  to  change  the  channel  of  any  of  these  navigable 
rivers  within  its  borders,  provided  it  leaves  its  navigability 
unimpaired. 

Upon  the  argument  of  this  cause  no   case  was  cite<l 
determining  the  authority  of  the  several   States   within 
whose  borders  portions  of  this  great  river  are  situated,  over 
11 


11 


1()2 


EAIILY  BENCH  AND  BAR  OF  ILLINOIS. 


such  j)oi'ti()ns  as  are  within  ilunv  several  Ixmiidai-irs,  and 
our  own  researches  during  the  conference  failed  to  find  any 
case  in  anv  of  the  States  where  this  im])ortant  question  had 
l)een  deci(hMl.  Many  ])hysic;d  jieculiarities  arc  exhibited  l)y 
this,  one  of  the  t'reat  rivers  of  the  Avorld,  and  it  was  iin- 
l)ortant  tliat  we,  to  wlioni  Avas  first  submitted  tliis  grciit 
([uestion,  shouUl  so  decide  it  that  it  sliould  b(;  a])proved  and 
I'oUowed  by  the  independent  courts  of  hist  resort  of  the 
several  States  similarly  situated.  Analogous  cases  wei'e 
not  wanting  in  this  country  and  in  England  in  reference  to 
navigable  watei-s,  but  ])!iysical  conditions  and  political 
boundaries  existed,  here,  which  rendered  these  analogies  far 
from  parallels  to  our  case. 

Whether  the  questions  which  Avere  decided  in  that  case 
have  ari.sen  and  been  determine<l  in  other  States  I  have  not 
examined  to  see,  yet  I  confess  I  would  be  interested  to 
know  Avhether  such  has  been  the  case  or  not,  and  how  thev 
were  determined. 


IL 


SERVICE    IN    THE    SUPKEME    COl'KT SCENES    IN    THE    CONFERENCE 


I     I 


The  conference  room  of  a  court,  consisting  of  several 
nuMubers,  is  a  school  in  which  human  nature  maybe  studied 
to  advantage,  as  well  as  other  characteristics  which  go  to 
make  up  the  man  and  the  judge,  but  few  who  have  sat  upon 
the  l)ench  of  a  court  of  last  resort  have  ever  been  associated, 
at  different  times,  with  a  greater  number  of  individual  mem- 
bers of  the  court  of  which  he  constituted  a]iart,  than  I  have 
l)een.  iJuring  my  service  on  the  supreme  bench  of  this 
State,  covering  a  period  of  nearly  twenty-two  years,  thei'e 
were  associated  with  me  seventeen  ditferent  judges,  some 
for  many  years  and  others  l)ut  for  short  periods,  and  1  can 
now  say,  with  great  satisfaction,  that  during  all  that  time 
the  greatest  personal  harmony  prevailed  in  the  conference 


.. 


THE  CONFERENCE  ROOM. 


II*.:] 


mom,  i\m]  I  may  sny,  out  of  it,  anion*:;  the  momLors  of  tlu^ 
court.  JVcvor  did  I  licai'  bctwoon  a!"iV  two  nuMnhci's  of  the 
court,  any  oll'ensivc  or  acrinionifjus  word  passed.  ^S'cccs- 
S;irily,diirerencos  of  opinion  often  existed  hotwecn  the  mem- 
bers upon  questions  arising  before  ns,  and  tliese  Avere  often 
considered  and  discussed  with  earnestness  and  animation, 
but  never  Avith  feelin<;s  or  ex])ressions  of  bitterness,  neve)- 
with  the  a])parent  object  of  securinij;  a  triumj)h,  but  always 
f<^r  the  manifest  ]iur})oseof  ari'ivin«;'at  the  truth,  and  obtain- 
ing a  ])roper  legal  (hx'ision.  Often,  in(h.'ed,  souk;  of  us  had 
to  yiehl  sometliing  for  the  sake  of  liarmony,  and  all  seemed 
disposed  to  do  this  when  it  could  bi;  done  without  yielding 
up  a  principle  which  was  deemed  vital  in  itself,  and  was 
thought  to  establish  a  precedent  which  it  was  believed 
would  have  to  l>e  reversed  at  some  future  time;  an<l  then, 
and  only  then,  was  the  dissent  ex[.ressed  in  an  o[)iiiion  which 
went  upon  the  records. 

lam  glad,  indeed,  of  an  o]>portunity  to  testify  to  the  singl(>- 
ness  of  purpose,  and  the  earnest  desii'e  of  eai-li  member  of 
the  court  to  actain  and  expi'ess  conclusions  which  would 
n'flect  the  law  as  it  was,  ai;d  which  should  stand  the  test  of 
time. 

In  a  former  paper  of  this  series,  I  deemed  it  pro])er  to  open 
the  door  of  the  conference  room  a  little  way,  and  now  I  pro- 
])Ose  to  open  it  a  little  further;  but  not  so  as  to  ex])ose  any 
of  those  secrets  which  propriety  requires  should  ever  remain 
undivulijed.  The  mode  of  conducting  business  in  the  con- 
ference  room  when  I  went  upon  the  bLmch,  in  1S42.  would 
later  have  be;>n  considered  crude  and  unsystematic;  but  the 
limited  annjunt  of  business  did  not  recpiii'e  that  system  and 
order  for  its  dispatch,  which  was  necessary  in  later  years. 
Of  course,  the  chief  justice  [)resided  in  the  conference  room 
as  he  did  upon  the  bench,  but  he  did  it  in  a  social  way  rather 
than  in  a  formal  mode.  i\o  notes  or  minutes  were  kept 
of  the  proceedings  in  the  conference  room.  Usually  a  case 
was  considered  as  soon  as  it  was  finally  submitted,  and  a.s 
we  never  had  jirinted  records  and  rarely  abstracts  of  any 


■l''t 


M: 


if 


i     ill 


r'l 


III- 


■.Hi 


■m 


(    it 


I  i 


^i»B!: 


lO-l 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


kind,  or  even  written  Imefs,  but  onl}''  notes,  whicli  we  ke])t 
oui'selves,  of  the  iiuthorities  quoted,  our  discussions  oi"  the 
ejise  in  the  conference  room  were  usually  bused  u})()n  the 
iii'uunients  which  we  h.'ul  heard  at  the  l)ar.  ('hief  Justice 
Wilson  did  not  possess  to  an  eminent  deforce  the  faculty  to 
critically  analyze  a  case,  and  evolve  with  precision  the  points 
u[)on  which  its  decision  must  turn,  but  in  the  cfuirso  of  the 
consideration  of  the  case  in  the  conference  room,  these  would 
come  to  be  pretty  distinctly  defined  from  the  various  sug-ges- 
tions  made  by  different  judges,  and  as  this  is  really  the  first 
necessarv  thintj  to  })e  done  in  oonsiderintr  a  case,  some  of  the 
judges  at  least,  made  it  a  point  to  accom})lisli  that  end  as 
soon  as  possible.  This  is  necessary  to  enable  one,  as  ex- 
])ressed  by  one  of  the  judges,  to  think  at  a  mark;  by  which 
he  no  doubt  meant  that  one's  thoughts  must  be  focused 
upon  a  single  point  rather  than  to  have  them  scattered  all 
over  the  side  of  a  barn. 

While  nominally  the  chief  justice '^''stributed  the  records 
amon<>-  the  nieml)ers  of  the  court  fo  a  more  thorouffh  ex- 
amination  and  for  writing  out  the  opinion  of  the  court,  prac- 
tically Ave  did  that  for  ourselves. 

The  older  members  of  the  court  seemed  very  willing  to 
avoid  the  laVwr  of  writing  o[)iuions,  while  several  of  the 
younger  members  sought  for  records,  which  Avould  give 
them  opportunities  to  get  into  the  reports  by  the  opinions 
which  they  should  write,  and  the  limited  amount  of  busi- 
ness was  hardly  sufficient  to  satisfy  these  ambitious  3^oung 
men,  while  the  chief  justice  seemed  to  appreciate  the  laud- 
able ambition  which  inspired  this  desire  for  work,  for  it  was 
a  sure  guaranty  that  no  labor  would  be  spared  to  understand 
the  record,  and  to  search  up  all  the  law  bearing  upon  the 
(juestions  involved.  Besides,  the  discussion  in  the  conference 
room  served  to  ])oint  out  which  of  the  judges  seemed  to 
have  the  clearest  idea  of  a  case  or  to  best  understand  the 
law  applicable  to  it,  and  so  would  be  designated  the  one  to 
whom  the  record  might  most  properly  be  given.  Not  that 
the  case  would,  then  be  left  entirely  to  the  one  to  whom 


THE  CONFERENCE  ROOM. 


10-') 


it  Avas  assi'^nod,  but  sevonil  otlior  rnomljors  of  the  court, 
at  loast,  uiado  it  a  ])<)int  to  carofullv  oxauiinc  all  tlu; 
records  of  any  im])ortance  and  the  law  involve<l  in  the  case, 
so  that  when  the  opinion  was  read  in  conference,  the  case 
was  again  carefully  discussed  and  considered. 

As  the  business  of  the  court  increased,  more  system  Avas 
required,  l)ut  still  very  little  change  took  ])lace  during  the 
period  of  the  nine  judges. 

During  the  period  of  tlu;  three  ju<lgesmuch  improvement 
Avas  uuule  in  the  mode   of  pi'oceeding  in  the  confcrenci^ 


room 


The  first  rule  requiring  anything  ])rinted  in  the  record 
Avas  in  ls,55,  which  denuinded  ])rinted  al)stracts  to  1»(>  filed, 
and  in  1850  ])rinted  briefs  Avere  re(]uired.  Pi'inted  records 
Avere  not  re(|uired  during  my  time.  These  rules  relieved  the 
judges  of  a  great  deal  of  Avork,  Avhich  had  been  previously 
recjuired  to  give  them  a  full  understanding  of  the  cas(>s 
which  they  had  to  decide.  If  the  abstract  filed  by  the  ap- 
])ellant  or  plaintiff  in  error  was  not  satisfactory  to  theothei* 
])arty,  he  could  file  an  abstract  himself,  or  so  much  of  an 
al)stract  as  he  deemed  necessary  to  su]i])ly  the  defects  of  tlxi 
other,  and  Ave  assumed  l)V  the  use  of  these  that  Ave  coul<l 
fairly  learn  AA'liat  the  record  contained,  though  wefreciuently 
found  it  necessary  to  go  to  the  original  record,  es])ecially  in 
cases  Avhere  the  tAvo  abstracts  disagreed.  This  Avas  always 
done  in  full  conference  Avhile  I  Avas  on  the  bench,  and  the 
briefs  AA'ere  examined  in  the  same  Avay,  and  the  authorities 
read,  and  in  most  cases  the  Avhole  matter  Avas  discussed  be- 
tween us.  and  a  decision  agree«l  u|)on  at  the  time,  though  it  av  as 
not  unfrequent  that  after  a  thorough  discussion  among  our- 
selves the  consideration  of  a  case  Avas  post]><>ncd  for  furtluM' 
examination  by  each  judge  individually,  after  Avhicli  it  Avas 
again  called  up,  further  discussed,  and  finally  decided. 
This  Avas  invariably  the  rule  during  my  time. 

It  sometimes  occurred  that  Ave  could  not  arrive  at  a  satis- 
factory conclusion  during  the  term,  Avlien  the  case  Avas  laid 
OA^erfor  a  further  examination  by  the  judges  separately  dur- 


\h 


ill 


H\i) 


EARLY  BE:;CII  AND  BAR  OF  ILLINOIS. 


!    .11 


ml 


iuiX  the  siiccccdinjf  vjication.     1  uiuv  lu'i-oaftei-  refer  to  a  few 
{)\  these  cases. 

When  I  l)ecame  cliief  justice  in  is.")."),  I  introduced  the 
])raetice  in  tiie  confei'ence  room  of  kee])in<^'  an  (t;/encla.  This 
consisted  of  a  small  bound  book  in  which  1  entered  the  title 
of  each  case  and  set  down  under  it  the  several  points 
which  it  was  deemed  necessary  to  decide  and  the  decision 
ui)on  each  ])oint  agreed  upon.  Tiiese  notes  of  decision  were 
made  at  the  time,  and  in  tlie  pi'esence  of  all  the  judges, 
I'ead  over  and  corrected,  when  necessary,  to  meet  the  views 
of  all,  and  sometimes  a  few  of  the  prominent  reasons  were 
also  inserted  in  the  (Kjendu;  a  co])y  of  this  v/as  nuido  for 
each  of  the  judges,  and  thercMii  was  also  stated  the  judge 
who  was  to  write  the  oj>inion.  In  cases  where  we  dis- 
agreed \\\^on  any  point,  that  was  pretty  fully  stated  in  the 
uiicndii,  and  the  case  was  usually  held  over  for  further  con- 
sideration until  the  next  term,  and  so  of  cases  or  points 
Avhere  some  one  or  all  of  us  desired  further  time  to  examine 
and  consider  them.  All  of  these  cases  I  transferi'ed  to  the 
new  iKjenda  for  the  next  term,  for  a  separate  tujenda  was 
always  prepared  for  each  tei-m. 

This  (ujijuda  system  we  found  of  the  greatest  value.  It 
economized  time  and  secured  accuracy,  and  it  sometimes 
corrected  mistakes. 

The  judge  in  writing  the  o])inion  had  before  him  a  full 
minute  of  the  points  to  be  decided  in  the  opinion,  and  Avhen 
he  read  it  in  conference,  each  of  the  other  judges,  having  his 
(H/i'iida  before  him,  could  instantlv  see  if  the  opinion  accorded 
with  the  decision  which  had  been  agr'^nl  upon.  It  some- 
times hap})ene(l  that  the  judge  in  writing  out  his  opinion 
changtHl  his  mind  upon  some  point,  Avhen  he  would  write  out 
his  opinion,  according  to  his  ])resent  convictions,  to  what  it 
should  be,  and  so  departed  from  the  notes  in  the  agenda. 
In  that  case,  of  course,  a  thorough  reconsideration  of  the 
nuitterAvas  necessarv,  and  I  recollect  that  almost  invariably 
the  change  was  api)roved,  and  I  have  no  doubt  that  thus  many 
motions  for  rehearing  were  avoide.l.    Whether  this  cu/enda 


TH.li:  CONFEIJEXCE  ROOM. 


ir,7 


system  lios  boon  convinucd  siiici'  I  loft  tlio  l)onc'1i  T  liiivc  no 
moans  ol"  knowing-,  1  ut  if  it  lias  not,  no  doubt  it  lias  boon 
abandoned  ror<>ood  reasons;  and  wlietlitM'  it  lias  been  |H)ssi- 
blo  for  the  court  to  thorouiiiily  examine  tlio  ease  in  lull 
conferenee,  as  it  was  done  in  former  times,  of  course  I  luive 
no  moans  of  knowinii:. 

Of  tlio  old  judges  who  wore  on  tlio  bench  in  is  12,  when  T 
took  my  seat,  there  wo"e  two  associate  justices  of  the  first 
Supremo  Court,  organized  after  tlie  adoption  of  the  consti- 
tution in  1S19,  and  upon  the  re-organization  of  the  couit  in 
1825,  AVilson  was  made  chief  justice  and  Urown  associate 
justice,  together  with  Samuel  D,  Lockwood  and  Thoophihis 
AV.  Smith.  Judge  Smith  died  before  I  went  on  th(^  bench, 
so  that  AVilson,  J.ockwoo('  and  JJrown  oidy  remained  of  the 
judges  who  constituted  tli'3  court,  previous  to  the  re-organi- 
zation of  18-to.  With  them  I  was  associated  on  the  bench 
for  six  years,  and  learned  to  know  them  well. 

Chief  Justice  Wilson  was  a  man  of  good  ])arts,  a  thorough 
gentleman,  courteous  and  ati'ablo,  ])]easant,  and  of  a  verv 
cheerful  disposition.  lie  was  fond  of  a  good  joke,  even  at 
his  own  expense,  or  that  of  his  best  friend,  lie  api)reciate(l 
liumor  and  told  a  stoiy  well.  IIo  was  a  good  lawyer,  but 
not  a  great  lawyer.  lie  had  read  law  books  to  good  ])ur- 
pose,  but  not  nearly  as  many  of  them  as  many  others  have. 
lie  comi)rehcnded  well  a  principle  of  law  when  stated  (»r 
road  to  him,  and  when  a  case  was  cited  in  support  of  an\^ 
proposition  of  law  he  readily  determined  Avhether  it  was 
applicable  or  not;  and  here  let  me  say  that  an  inability  to 
do  this  is  a  very  common  defect  among  a  considei-able  ])ro- 
portion  of  lawyers;  at  least,  very  many  of  the  lawyers 
who  have  argued  cases  before  me,  have  cited  cases  in  sup- 
])ort  of  a  position  with  the  undoubted  conviction  that  they 
were  certaiidy  in  point,  and  could  never  be  made  to  see  that 
it  was  otherwise,  when,  in  truth,  they  lacked  that  analo<Tv^ 
to  the  one  at  bar  which  alone  could  make  the  decision  ap- 
l)licable.  This  defect  is  incurable  and  can  not  be  remedied 
by  education  or  study,  or  the  mosi  industrious  training. 


I 


'1? 


UiS 


EAULY  BENX'II  AND  BAR  OF  ILLINOIS 


Tho  tioiiMc  is,  that  tlioy  can  never  he  made  to  conipreliend 
tlie  distinction,  which  is  palpalile  to  tho  ^^'eat  inajitrity  of 
hiwvei's.  On  the  other  hand,  I  have  met  witli  a  lew  hiw- 
yers  wliose  perceptions  were  so  line  and  (U'licatc;  that  they 
conld  see  a  distinction  which  couhl  not  be  apjjreciated  by 
tiio  ordinary  mind,  l?y  wliich  I  mean  the  great  mass  of  abh' 
hiwyers,  who  can  make  others  see  it  as  they  see  it  them- 
selves. 

Chief  JnsticeAVilson  Avaa  of  this  Ir.tter  chiss.  lie  did  not 
know  all  the;  law  that  there  is,  nor  does  any  other  man  that 
lives,  but,  as  I  have  said,  he  had  the  capacity  to  unch.'rstand 
the  law  Avhen  it  was  read  to  him,  or  was  stated  to  him  in 
ar<^iiment,  with  the  reasons  in  sup};ort  of  it,  and  this  is  a 
cai)acity  of  the  greatest  value  in  a  judf^^c.  I  have  stated 
that  he  was  sociable  and  agreeable  in  his  nature,  fond  of 
l)leasantry,  could  tell  a  good  story  and  tell  it  well,  and  often 
Avhen  tired  of  hard  thinking  and  of  listening  to  drv  discus- 
sions  in  the  conference  room  he  would  break  in  and  tellsonu' 
m)od  storv,  which  would  be  a  relief  and  rest  to  all.  "•  Wh  v," 
said  he  "Judge,"  breaking  in  u[)on  <me  of  us,  during  one  of 
these  drv  discussions,  "  vou  remind  me  of  a  lawyer  who 
lived  on  the  other  side  of  the  AV'abash,  Avho  came  across  the 
river  to  our  side  to  try  a  cause  before  a  justice  of  the  peace. 
A  Sucker  lawyer  was  on  the  other  side  and  in  the  course  of 
the  trial  he  asserted  some  principle  which  the  Iloosier  lawyer 
denied  most  strenuously.  After  the  dispute  had  gone  on  for 
some  time  the  Sucker  took  up  the  Illinois  statutes,  and  read 
an  act  which  changed  the  common  law,  and  declared  the 
law  to  be  as  he  had  asserted  it.  At  this  the  foreign  gentle- 
man seemed  dumbfounded  i'^v  a  moment  and  was  silent,  lie 
finally  arose  with  great  deliberation,  and  sorrow  clearly 
depicted  upon  his  countenance,  and  said,  '  ]*.Iay  it  ])lease  the 
court,  when  I  hear  of  the  assembling  of  a  legislature  in  one 
of  these  Western  States,  it  reminds  me  of  a  cry  of  fire  in  a 
populous  city.  Nobody  knows  when  he  is  safe.  No  one 
can  tell  where  the  ruin  will  end.' " 

The  chief  justice  and  Judge  Lockwood  were  very  warm 


THE  COXFEKENCK  IIOO.M. 


HV.) 


])<M'S(>niil  frioiuls,  aiul  liiid  \)vcn  vci'v  iiitiin!it(\  nliiinst  t'l'diii 
their  lirst  iicHiuaintancc.  when  hotli  were  l)ju-h('h»rs.  Jiiid  ohi 
l)aelioh)rs  ut  that.  Wilson  wms  mavricd  lirst,  and  l)i'(»iiulit 
Ills  wife  I'rom  Viri^-inia  jind  settled  down  to  houst'k<'ei)in<^on 
tile  AV^aljasii  river.  ( )ne(!,  in  tiie  eonferenee  room,  at  my  tirst 
term  on  tlio  hencii,  Jud^^c  Loeicwood  was  diseiissin^'  some 
question  witli  an  earnestness  wliieli  sliowed  tliat  lie  tli(tii^lit 
lie  certainly  knew  what  hr,  was  talking-  al»out.  After 
listeninf"'  some  tinu^  to  l.oekwood's  conlident  manner  <»f 
maintaining  his  jxMnt,  tlie  chief  justice;  turned  to  me  and 
said:  "Caton,  Lockwood  knows  a  "^reat  deal,  hut  he  some- 
times thinks  he  knows  more  than  lie  do(>s.  1  well  remend»er 
that  a  few  months  after  I  got  marri(>d  and  hrought  my  wife 
to  Illinois,  Lockw(«)(l  came  all  the  way  aci-oss  the  State  to 
visit  and  congi'atulate  me.  and  we  had  the  |)leiisiii-e  of  his 
society  for  a  number  of  days.  One  morning  Mi's.  Wilson 
did  not  ai)pear  at  the  breakfast  table,  and  in  answer  to  his 
inquiries  I  *old  him  that  .she  felt  (|uite  unwell,  that  she  was 
suffering  considerable  ])ain  and  es])ecially  in  the  small  of 
lier  back,  and  that  they  could  not  conceive  what  was  the 
matter  as  she  was  usually  very  healthy. 

"Lockwood  remarked  that  it  was  nothing  serious,  that 
ho  had  been  troubled  several  times  with  the  same  com[)laint 
himself,  and  that  he  always  found  relief  by  the  a])|)lication 
of  a  bag  of  hot  salt  to  the  small  of  the  back,  and  recom- 
mended that  the  same  I'emedy  be  resorted  to  now.  This 
was  done,  and  the  relief  so(m  came,  but  in  away  by  no 
means  desirable;  it  was  in  the  loss  of  a  prospectivt;  heir; 
and  Lockwood  has  never  been  abl3  to  convince  me  that  he 
had  been  troubled  with  the  same  disease,  and  luu'  found 
relief  in  the  same  way,  and  I  ha. V(;  ever  since  believed  that 
for  once,  at  least,  he  was  mistaken." 

During  this  recital  Lockv/co^I  seemed  restive  and  im- 
patient, for  any  joke  at  his  expense  tended  to  annoy  him. 


il 


■ 


:r: 

: 

■[if 

'-'  'i  '\        ' 

-  ■ ;   i; 

liil 

170  j:a!{LY  hkncii  and  luu  of  Illinois. 


in. 


TlIK    .IL'IKiKS    OF    TlIK    .SlJl'KKMK    COIUT. 

Riiinncl  I).  Lockwood  was  tho  first  jiul<j;'o  whoso  ii('(|U{iint- 
jmc'O  I  lUJide  in  llio  State  ol"  Illinois.  AVhon  livini';,  1  rcvoivd 
hill)  as  a.  niiin  and  as  a  jurist,  and  1  jvvcro  his  nicinory  sincci 
lie  has  dcparti'tl.  I  lirst  met  him  thelirtiiot'  OctohiT,  ls;',;{, 
when  ho  was  iioldino'  tho  Circuit  Court  at  Pelcin  in  Ta/c- 
wcll  county,  where  J  arrived  in  the  al'ternoon  on  horseback 
i'vom  Chica;4'o.  1  first  saw  iiim  on  tlio  bench,  and  after 
court  adjourned  for  the  day,  I  introduced  '.nyseif  to  him, 
and  exphiined  that  I  was  alreiuly  ])racticin<;'!a\v  in  ('hica<4'o, 
l»ut  liad  not  yet  received  a  license',  wliicli  I  wisiied  to  ])ro- 
curc  from  him  should  he,  upon  examination,  find  me  (luali- 
fied  to  commence  the  practice  of  the  profession.  Jle  re- 
ceived me  most  kindly,  and  treated  mo  with  tlu^  utmost 
courtes}^  and  consideration,  introduced  me  to  the  meml)ers 
of  the  bar  present,  amono'  whom  I  remember  Stephen  T. 
liO^an,  John  T.  Stewart,  John  J.  Harden  and  Dan  Stone, 
who  were  attendir.<^  that  court  from  abroad,  all  of  whom,  I 
then  tirst  met.  The  judo-e  then  in([uiredof  the  place  of  my 
nativity,  whence  I  came  and  when. 

After  supper  he  invited  me  to  take  a  walk.  It  was  a 
beautiful  mooidit  ni<:;iit;  we  sti'olled  down  to  the  l)ank 
of  tiie  river,  he  leading-  the  conversation  on  various  subjects, 
and  when  we  arrived  at  a  large  oak  stump,  on  either  side  of 
Avhich  we  stood,  he  rather  abruptly  commenced  the  exam- 
ination by  iiKpiiring  with  whom  1  Jiad  read  law  and  how 
long,  Avhat  books  I  had  read,  and  then  iiKpiired  of  the  dif- 
ferent forms  of  action,  and  tlie  objects  of  each,  some  ques- 
tions about  criminal  law,  and  the  law  of  the  administration 
of  estates,  and  especially  of  the  provisions  of  our  statutes  on 
those  snbjects. 

I  was  surprised  and  somewhat  embarrassed  to  find  myself 
so  unexpectedly  undergoing  the  examination,  and  Iningled 
considerably  at  the  first  when  he  inquired  about  the  different 


1 

i  i 


i 


'1 

?! 


SAMUEL    I».    LOCKWOOD. 


,1 


!f 


w 


THE  CONFERENCE  ROOIil. 


171 


forms  of  action,  but  ho  kindly  helped  nie  out  by  more  spe- 
cific questions,  which  directed  my  attention  to  the  points 
about  which  he  wished  to  test  my  knowledge,  when  I  got 
along  more  satisfactorily. 

I  do  not  think  that  the  examination  occupied  more  than 
thirty  minutes,  but  it  had  the  effect  of  starting  a  i)retty  free 
l)erspiration,  I  think  I  would  have  got  along  much  better 
had  it  commenced  in  a  more  formal  Avay.  However,  at  the 
close  he  said  he  would  give  me  a  license,  although  I  had 
much  to  learn  to  make  me  a  good  lawyer,  and  said  I  had 
better  adopt  some  other  pursuit,  unless  I  was  determined 
to  work  hard,  to  read  much  and  to  think  strougly  of  what 
I  did  read;  that  good  strong  thinking  was  as  indis})ensable 
to  success  in  the  profession  as  industrious  reading;  but  that 
both  vrere  absolutely  important  to  enable  a  man  to  attain 
eminence  as  a  Ir.wyer,  or  even  res]>ectability. 

I  thanked  him  for  his  advice  and  assured  him  that  I 
had  no  ambition  in  life  except  to  qualify  myself  for  a  high 
l)osition  in  the  profession,  and  that  I  thought  that  ambition 
would  enable  me  to  follow  his  advice  to  its  utmost  extent, 
and  that  I  believed  I  had  firmness  of  character  and  of  pur- 
pose enough  to  enable  me  to  do  so,  though  it  might  take 
long  years  devoted  to  that  single  purpose  to  accomplish  it ; 
and  I  nuiy  now  say  that  I  faithfully  lived  up  to  the  i)romise 
I  then  made  to  my  venerable  friend — for  he  seemed  so  to 
me — but  he  was  then  only  in  middle  life,  though  his  hair 
was  almost  as  white  as  snow.  His  kindly  bearing  to  me 
then  made  an  impression  which  never  faded  in  all  of  the 
vicissitudes  of  after  liie,  and  whenever  I  disagreed  with  liim 
in  the  conference  room  I  did  so  with  great  hesitancy,  and 
whenever  he  changed  his  views  so  as  to  conform  with 
mine  I  still  feared  that  I  might  be  w'rong  after  all.  In  his 
private  character  he  was  a  model  of  purity  and  propriety. 

If  Judge  Lockwood  was  not  a  great  man,  he  Avas  a  good 
man  and  a  good  judge.  He  had  been  a  close  student  of  the 
law,  and  seemed  to  have  read  everything  Avithin  his  reach. 
His  pci'ceptions  Avere  very  clear  and  discriminating.    He 


^1 


172 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


had  a  high  sense  of  justice,  yet  he  would  not  hesitate  to  en- 
force the  law  as  he  found  it  although  he  might  think  that 
in  a  particular  case  it  worked  injustice.  His  high  sense  of 
the  proprieties  of  life  was  as  conspicuous  in  the  conference 
room  as  in  every  other  walk  of  life.  His  sympathies  were 
easily  awakened  and  were  ever  active,  and  yet  they  were  so 
under  the  control  of  his  sterner  feelings  and  his  sense  of  duty 
that  it  could  never  lead  him  to  warp  the  law  in  obedience  to 
its  demand.  His  discrimination  was  always  keen,  but  ever 
practical.  He  had  an  exalted  opinion  of  State  rights,  in 
which  I  could  not  always  agree  with  him,  and  I  once  wrote 
a  dissenting  opinion  in  which  I  maintained  that  the  provision 
of  the  United  States  Constitution,  which  secures  to  all  in- 
nocent persons  the  rights  to  life,  liberty  and  property,  pro- 
hibits a  State  constitution  to  reduce  a  free  man  to  a  state  of 
servitude,  who  is  not  guilty  of  any  crime.  The  opinion 
which  aad  been  read  in  that  case  was  so  modified  after  I 
read  my  dissenting  opinion  as  to  avoid  that  question,  so  it 
was  never  filed.  His  active  efforts  to  defeat  the  constitution 
which  pro])osed  to  make  Illinois  a  slave  State  showed  what 
were  his  individual  sentiments  on  that  subject,  and  his  efforts 
in  that  great  controversy  were  remembered  as  long  as  the 
controversy  itself  was  fresh  in  the  memory  of  men.  All 
his  acts  and  thoughts  were  the  reverse  of  austerity,  without 
lowering  his  dignity  in  the  least  on  proper  occasions.  His 
social  qualities  were  pleasing.  He  enjoyed  humor  and  a 
good  anecdote,  but  was  not  as  good  a  story  teller  as  many 
of  his  contemporaries.  His  style  of  writing  was  easy  and 
perspicuous,  and  whoever  will  carefully  study  his  opinions 
will  not  fail  to  see  that  he  was  a  close  and  accurate  thinker, 
a  diligent  student,  and  a  terse  writer. 

The  jurisprudence  of  Illinois  owes  much  to  Judge  Lock- 
wood,  for  he  was  a  potent  power  in  laying  its  foundation, 
and  his  labors  and  efforts  at  that  early  day  should  never 
be  forgotten;  I  have  ever  esteemed  it  as  one  of  my  most 
happy  privileges  that  I  could  benefit  by  so  intimate  associa- 
tion with  him  at  so  early  a  period  of  my  life. 


;  U 


THE  CONFERENCE  IIOOJI. 


17:5 


.Tu(l"o  Tlioiniis  (/.  I>ro\vn  was  tlio  onlv  rcniaitiiii"-  iiicmlor 
of  tlio  old  t'oui't  of  f»)ur  judges  bofoiv  whom  I  i)rju'ticc>d  in 
the  Supreme  C\)Ui't,  fcjr  Judge  Smith  lia<l  died  liefoi'e  1  eanu> 
to  the  bench,  and  so  I  was  never  asuociuted  with  him  in  that 
tribunah 

Judge  Brown  Avas  really  a  remarlcable  man  in  sev<'ral 
respects.  If  he  ever  read  a  law  l»ook  it  was  so  lon<jiii>(>  that 
lie  must  have  forgotten  it.  Jle  had  already  occni)ied  a  seat 
U[»on  the  sui)reme  bench  for  twenty-four  years,  from  the 
first  organization  of  the  court  upon  its  admission  into  the 
Union  as  a  State.  During  all  that  time  I  have  i-eason  to 
believe  that  he  never  wrote  an  opinion.  ()n(;  of  the  opin- 
ions which  appears  to  have  boen  written  by  him  in  the 
rei)orts,  Judge  JJreese  testified  before  the  Legislature  in  a 
])roceeding  de])emling  in  that  body,  that  he  wrote  the  opin- 
ion for  Judge  Jirown.  In  the  conference  room  I  never 
lieard  him  attempt  to  argue  any  question,  for  he  did  not 
seem  to  be  able  to  express  his  views  in  a  sustained  or  logical 
form,  and  yet  he  was  a  man  of  very  considerable  ability, 
and  had  very  distinct  views  of  his  own  on  questions  that 
came  before  him  for  decision. 

He  ha  I  bjjn  liscening  to  argumr^nts  baforo  the  court  for 
more  than  twenty  years;  and  I  may  say  here  tluit  it  is  the 
l)est  school  that  any  iium  can  attend  to  learn  the  law.  The 
lecture  of  a  learned  professor  to  a  class  in  a  law  school, 
however  im])ortant  to  a  student  in  the  beginning,  can  bear 
no  comi)arison  to  the  arguments  before  an  appellate  court, 
where  every  argument  is  a  lecture  upon  some  particular 
(piestion  or  questions,  generally  pre])ared  by  an  abh^  man, 
who  exhausts  the  subject  to  a  greater  or  less  extent;  and  if 
the  arguments  are  one-sided  arguments,  and  so  might  tnis- 
lead  the  student,  the  misleading  arguments  are  sure  to  be 
met  by  the  counsel  on  the  other  side,  so  that  the  judge  or 
the  student  hears  the  reasoning  and  authorities  which  may 
be  produced  on  both  sides,  and  he  is  enabled,  if  he  is 
capable  of  doing  so,  to  understand  what  the  law  is  in  the 
particular  case. 


!S 


'I 


1, 


ii 


i  I 

■  r 

II 


174 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


Tliore  wore  vory  able  lawyers  avIio  practiced  before  tl:at 
court  in  its  earliest  days,  as  well  as  since,  and  no  one  could 
have  listened  to  their  le^jal  discussions  for  twentv  years 
without  hearin<^  and  learning  a  great  deal  of  law  if  he  was 
only  capable  of  comprehending  it.  Xow,  Judge  Brown  did 
not  lack  this  capacitj^  but  he  did  lack  the  capacity  of 
clearly  expressing,  either  in  writing  or  orally,  his  thoughts 
in  a  clear  and  pers])icuons  manner.  lie  could  express  him- 
self in  conversation  so  as  to  be  well  understood,  but  never 
in  the  form  of  a  sustained  discussion.  He  expressed  himself 
in  e])igrams,  or  short  and  pungent  sentences  Avhicli  showed 
that  he  was  a  good  thinker,  Jind  had  clear  and  distinct 
views  of  his  own.  lie  was  a  profound  student  of  nature, 
and  could  judge  with  great  accuracy,  not  only  of  individual 
character,  but  of  what  would  influence  the  minds  of  men. 
Ife  listened  attentively  to  the  discussions  in  the  conference 
I'oom,  and  Avould  never  express  his  opinion,  especially  in  an 
important  case,  until  he  had  heard  all  that  could  be  said  on 
either  side  by  other  members  of  the  court,  for  e  a])pre- 
ciated  that  he  could  not  well  maintain  his  views  by  argu- 
ment; but  he  would  often  throw"  in  pungent  expressions, 
\viii(.'h  of  themselves  would  contain  a  pretty  extended  argu- 
ment. At  the  session  of  the  General  Assembly  in  1844-5, 
when  Shields  and  myself  were  holding  commissions  by  ap- 
])ointment,  and  so  our  terms  would  ex})ire  with  the  adjourn- 
ment of  the  Legislature,  a  fearful  spasm  of  economy  seemed 
to  sweep  over  it,  and  a  bill  was  introduced  fixing  the  salary 
of  the  supreme  judges  at  one  thousand  dollars  per  annum. 
As  this  could  only  take  effect  upon  Shields  and  myself, 
should  Ave  be  elected,  a  committee  was  ap])ointed  to  wait 
upon  the  other  judges,  whose  salaries  Avere  protected  by  the 
Constitution,  and  get  their  written  consent  to  this  red"  '  u 
of  their  salaries.  Of  course  those  judges,  who  felt  a;  .; 
pendent  of  the  Legislature  as  they  Avere  of  the  jr  :,;, 
politely  declined  to  agree  to  any  such  proposition,  j  uose 
visits  were  not  made  to  the  judges  in  the  conference  room, 
but  they  Avere  made  to  them  severally   or  indlAadually. 


THE  CONFEIIENX'E  ROO.AI. 


IT'j 


"When  l\riinnino;,  an  able  lawyer,  and  a  meiiilxM' from  Peoriii. 
ap})i'oaclie(l  Brown  Avith  a  projjosition,  lie  replied  :  ••  Per- 
jury, ])erjury,  sir;  you  ask  nio  to  coiiiuiit  perjury.  The 
C-onstitution  says  that  our  salaries  shall  not  Ix;  reduced 
durinji'  our  continuance  in  oiliee,  and  now  vou  ask  us  to 
])artieipate  in  a  reduction,  which  is  a  clear  violation  of  the 
Constitution  which.  I  have  sworn  to  suj)poi't.  I  never  did 
and  I  never  Avill  knowingly  commit  perjuiy/' 

But  they  had  Shields  and  myself  tig-ht;  for  all  that 
we  did  not  decline  the  election  on  that  account,  hut  were 
elected  and  held  our  olfices  two  years  at  the  nMluccd  sidary. 
Let  i'  be  remembered  that  we  had  to  f?o  around  our  circuits 
twice  each  year  and  attend  the  Supreme  Court  in  the 
winter,  ])ay  all  our  own  expenses,  and  even  our  own  postai^'e 
on  o^ricial  business,  without  any  ])er(piisltes,  unless  we  niiuht 
occasionally  make  a  dollar  by  ])erformin<j:  a  nuirriaui?  cer- 
emony, oi'  a  quarter  for  taking  an  acknowl('(lginent  of  a  deed 
or  sweariu":  somebodv  to  an  affidavit,  which,  alto '■<  ther, 
never  amounted  to  ten  dollars  a  year. 

At  the  next  session  of  the  General  Asseml)ly  a  law  was 
passed  raising  our  salaries  to  the  same  amount  received  by 
the  other  judges,  but  they  never  made  up  the  thousand  dol- 
lars which  we  received  less  than  the  others  during  the  two 
years. 

I  recollect  that  once,  in  the  conference  room,  he  and  I 
dilTered  from  all  the  other  judges  upon  a  case  which  went 
up  from  his  circuit,  involving  questions  growing  out  of 
what  was  called  squatter,  or  claim  titles  to  ])ublic  lands,  a 
tenure  h\  which  a  very  large  portion  of  the  land  in  our  cir- 
cuits was  held,  and  was  scarcely  known  in  other  parts  ol 
the  State.  Our  predecessors  on  the  circuit  bench  had.  Avith 
the  sanction  of  the  bar,  established  a  sort  of  common  law 
for  the  government  of  this  sort  of  titles,  which  was  recog- 
nized and  acted  upon  by  all,  Avithout  a  thought  that  these 
rules  could  ever  be  disturbed  or  questioned;  but  some  new 
lawyer  hatl  lately  come  in,  who  could  not  lind  anvthini"'  in 
Blackstone  or  in  our  statute  to  support  these  rules,  and  took 


H 


i 


170 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


jil 


liis  car.c  to  the  Su])rerie  Court,  and  we  were  .astonislicd  to 
see  tliiit  the  other  nioiiil)ors  of  the  court  wore  iiicliiuul  to 
overturn  our  local  hiw,  as  it  liad  been  administered  with- 
out question  for  so  many  years,  whicli  woukl  disturb  a  great 
numy  tithes  in  our  circuits  that  were  ref,nirded  as  well 
settled,  and  Avere  bought  and  sold  every  day  without  ques- 
tion. Without  coming  to  a  linal  decision,  however,  I  Wiis 
])ermitted  to  take  the  record  and  write  out  our  views  and 
pi'esent  them  at  a  subsetjuent  conference,  l^rown's  room 
was  opposite  to  mine  in  the  hall  at  the  hotel,  and  at  a  con- 
ference between  us  we  agreed  that  the  whole  case  was  re- 
solved into  two  principal  (piestions,  and  that  if  they  would 
agree  with  us  on  the  first  question,  Ave  thought  that  we 
could  see  that  they  would  bo  c()m})elled  to  concur  with  us 
on  the  second.  So  I  took  the  record  to  my  room  and  wrote 
out  our  views  upon  the  first  (piestion  involved,  Avhich  I  took 
across  to  his  room  and  rend  to  him,  and  he  expressed  him- 
self much  pleased  Avith  the  manner  in  Avhicli  I  tretited  it.  I 
then  gathered  up  the  ])aperr,  and  said  I  Avould  go  and  Avrite 
out  the  second  part.  "No,  no,"  said  he,  "don't  Avrite  an- 
other word  now.  Let  them  take  their  medicine  in  broken 
doses.  If  they  Avill  take  the  first  and  keep  it  down  they  Avill 
take  the  balance  Avithout  making  a  wry  face."  I  readily 
j)erceiA'ed  the  force  of  his  suggestion,  at  least  so  far  as  pre- 
senting it  in  broken  doses  Avas  concerned,  although  I  think 
I  wrote  the  balance  of  the  opinion  the  same  night,  but  did 
not  attach  them  together. 

At  the  next  conference  I  read  the  first  part.  "When  I 
had  done  the  chief  justice  inquired  Avhere  Avas  the  balance 
of  the  opinion.  I  told  him  that  unless  Avhat  I  had  Avritten 
Avas  approved,  it  Avas  no  use  to  Avrite  any  more,  so  I  had 
])resented  this  for  their  consideration,  and  if  it  Avas  adopted 
I  Avould  then  see  Avhat  I  could  do  Avith  the  b.ilance  of  the 
case.  It  Avas  considered  and  a])i)rovcd  unanimousl}^  and  at 
a  subsequent  conference  I  read  the  balance  of  the  0^)1  nion, 
and  the  final  result  AA'as  that  they  took  the  last  part  of  the 
dose  more  complacently  than  the  first,  so  that  Ave  finally 


THE  CONFERENCE  ROOM. 


177 


obtained  tlio  sanction  of  tlie  Supreme  Court  for  our  local 
common  law  governinfj;  claim  titles. 

I  often  heard  a  story,  not  long  after  I  went  upon  the 
bench,  in  which  it  was  stated  that  Chief  Justice  Wilson 
asked  his  associates  severally  for  their  opinions  on  the  case 
which  was  under  considei'ation,  and  that  when  he  came  to 
Brown  he  was  answered  that  he  was  not  quite  prepared  to 
give  his  opinion  yet,  ho  wanted  to  consider  the  case  further; 
and  that  Wilson  replied,  "Oh,  nonsense,  Brown,  you  may 
just  as  well  guess  on  the  case  now  as  any  time."  But  that 
never  occurred  while  I  was  in  the  conference  room,  and  I 
am  sure  I  never  heard  it  related  l>y  any  one  of  the  jud<^es 
as  having  occurred;  and  I  have  no  doubt  the  story  was  made 
up  by  some  one  who  supposed  it  to  be  characteristic. 

I  never  saw  Judge  Brown  upon  the  circuit  bench,  but 
always  understood  that  he  got  along  very  pleasantly  with 
the  bar  and  administered  justice  as  satisfactorily  as  any  of 
the  other  judges  holding  Circuit  Courts.  lie  evidently  ap- 
])reciated  that  while  he  could  plainly  see  how  a  question 
should  be  decided  he  might  not  readily  be  able  to  assign  the 
best  reason  for  that  decision,  and  so  he  prudently  declined 
to  assign  any  reasons.  Probably  all  of  us  would  have  got 
along  better  at  times  had  we  adoj^ted  the  same  wise  course. 

Mr.  B.  C.  Cook  relates  a  story,  that  he  tried  a  cause  before^ 
Judge  Brown  at  Dixon,  in  Lee  county,  and  that  after  he  had 
obtained  a  verdict  to  which  he  thought  he  was  fairly  entitled, 
a  motion  for  a  new  trial  was  made,  which  he  thought  Avas 
so  plainly  unnecessary  that  he  declined  to  argue.  The 
judge,  after  looking  solemn  and  wise  for  a  few  minutes, 
said,  "  Well,  Mr.  Cook,  let  us  give  him  a  new  trial.  Maybe 
he  will  be  better  satisfied  next  time." 

Perhaps  I  have  said  enough  to  give  a  fair  idea  of  my  opin- 
ion of  the  peculiarities  and  abilities  of  Judge  Thomas  C. 
Brown,  and  will  conclude  by  saying  that  I  think  he  was  a 
man  of  very  considerable  ability  and  a  much  better  judge 
than  he  usually  has  the  credit  of  being. 

I  have  been  looking  over  some  of  the  earlier  volumes  of 
12 


l^r 


-« 


jr 


178 


EARLY  BENXII  AND  BAR  OF  ILLINOIS. 


§i. 


f     ■! 


■'I    i' 


our  reports,  tiiul  am  tlicroby  reinindeil  of  events  wliicli 
occurred  from  fortv-fivo  to  twentv-llve  \'ears  aifo.  This 
luis  affoi'ded  me  <^' real  satisfaction.  It  called  to  mind  inci- 
dents lon;^•  siiu;e  for«.>otten,  which  occurred  in  early  life  as 
connected  with  the  duties  and  res)»onsil)ilities  which  then 
devoh'ed  upon  me,  and  of  associations,  both  i)er.sonal  and 
'ytficial,  many  of  which,  but  for  such  reminder,  lui^ht  nevei* 
havea<j:ain  been  thou<.;ht  of.  I  will  repeat  that  my  ])ersoiud 
and  ollicial  associations  were  of  the  most  pleasing  and  har- 
monious chai'acter;  still  a  sense  of  sadness  cree[)s  over  me, 
when  I  remember  what  a  lur<>e  projuirtion  of  tiiose  with 
whom  1  then  associated  in  otilcial  and  professional  life,  have 
gone  before  me.  I  will  particulaiize  some  of  those  event.; 
which  are  called  to  mind  by  those  old  reports. 

I  have  in  a  former  number  of  this  sr:'ies  referred  to  the 
case  of  BallanoQ  v.  Uiiderhill,  3  Scam.  453,  as  the  first  record 
wiiich  was  assi<^ned  to  me  to  ])repare  the  oj)inion  of  the 
court;  but  I  had  before  that,  Avithout  the  asking;,  in  the  case 
of  Camden  v.  McCoy,  3  Scam.  447,  delivered  a  dissenting 
opinion.  Douglass  had  prepared  an  opinion  in  that  case,  to 
which  all  the  judges  agreed  except  myself.  Is'ot  su])])osing 
that  it  would  be  read  the  next  morning  from  his  j)lace  on 
the  bench,  and  desiring  to  present  my  views  with  consider- 
able care,  I  had  not  prepared  my  dissenting  opinion,  as  the 
opinions  were  always  recorded  as  soon  as  possible  after  their 
delivery,  and  the  record  read  by  the  clerk  from  the  record 
book  the  next  morning.  So  soon  as  Douglass  had  closed  read- 
ing the  o})inion  of  the  court,  I  declared  my  dissent  from  it,  and 
l)roceeded  to  state,  orally,  the  reasons  for  my  disagreement 
with  the  other  members  of  the  court.  So  soon  as  the  court 
adjourned  for  noon  I  was  surrounded  by  a  considerable  num- 
ber of  the  bar,  who  urged  me  in  the  strongest  terms  to  Avrite 
out  my  dissenting  opinion  and  j)lace  it  u[)on  the  records,  for 
tliey  thought  that  I  was  certainly  right  and  would  some 
time  be  sustained  by  the  court  and  my  opinion  be  made  a 
rule  of  the  commercial  law  of  this  State.  I  did  write  out 
my  dissenting  opinion  that  night,  and  handed  it  to  the  clerk 


THE  CONFERENCE  ROOM. 


17!> 


in  the  morning,  who  had  left  a  hhmk  in  his  record  followiiu 


'o' 


the  ])rini'ii>al  opinion,  in  which  the  dissenting-  opinion  was 
recorded.  I  do  not  ivnieniber  whether  the  same  tpiestion 
aiisiin  arose  wliilo  I  was  on  the  bench,  or  if  it  has  ai'isen  since; 
I  can  not  say  what  has  been  the  coarse  of  (h-cision  upon  it. 
J  now  see  that  in  my  dissentin*,^  opinion  1  iield  that  if  a  not<i 
of  hand  is  prt'sented  by  tiie  ])ayee,  without  iii(h)rsenjent  by 
him,  with  tiie  name  of  another  wi'itten  on  tlie  back,  without 
any  eviihmco  to  show  wiien  that  name  was  written,  or  for 
what  purpose,  .hat  the  presumption  of  hiw  is  that  it  was 
written  tliere  at  tin?  tim«)  of  the  ex<'cution  of  th»'  note,  and 
that  his  t)blijjation  was  not  that  of  an  in(h>rser,  but  tliat  lie 
became  a  •^niarantor,  and  was  in  fact  a  joint  milker  of  the 
note,  and  mi^ht  be  sued  as  sucli  jointly  with  tiie  party 
whose  name  was  written  on  tlie  face  of  the  note;  that  the 
consideration  for  widch  the  note  was  given  was  a  sufHcient 
consideration  for  tlie  <^uarantee;  that  all  the  acts  done  at 
that  time  constituted  but  one  transaction;  that  th«.>  obli<j:a- 
tions  were  simultaneous,  alikeand  joint,  and  that  they  mi<;ht 
be  enforced  in  one  action  against  both, and  that  the  creditor 
need  not  bringamultii)licity  of  actions  to  enforce  his  rigjits. 
Then,  for  the  first  time,  was  my  voice  lieard  from  that  bench. 
It  was  next  heard  when  I  read  the  opinion  of  the  court  in 
the  case  of  Ballance  v.  Underhill,  in  which  it  was  lu^ld  that 
a  defendant  in  a  suit  in  chancery  could  not  be  decrecHl  alJirm- 
ative  relief  upon  statements  made  in  his  answer,  but  that  he 
must  file  a  cross-bill  to  entitle  him  to  such  relief;  and  I  had 
a  pretty  hard  struggle  to  get  that  decision  adopted.  Indeed, 
I  confess  that  I  then  thought  that  I  was  looked  upon  as 
too  much  of  a  boy  to  entitle  my  o})inions  of  the  law  to  be 
of  much  weight  or  influence. 

At  the  same  term  of  the  court  in  the  case  of  Updike  v. 
Armstrong,  I  wrote  the  o])inion  of  the  court  reversing  a 
judgment  which  I  had  rendered  in  tlie  Circuit  Court. 

As  I  was  defeated  in  the  election  by  the  General  Assembly, 
which  took  place  during  my  first  term  of  the  court,  my 
commission  would  expire  at  the  close  of  that  session.     I 


m 


r 


180 


EAIMA'  HKNCH  AND  BAR  OF  ILLINOIS. 


)    1 


supposed  that  T  sluniM  tlion  r<»tii'o  from  tlic  l)on(!li  foi'cvor. 
Ilrt'orc^  the  close  of  the  term  the  case  of  Doylo  v.  Teas,  Jth 
Scam.  202,  had  heen  argued  and  sul)initt(^l  and  cousidei'ed 
in  conference  at  sov(»ral  sessions,  in  which  I  took  a  pretty 
active  part,  but  no  final  a<^reenient  had  hei^n  arrived  at.  I 
was  reiiuested  liy  the  ciiief  justice,  with  the  approval  of  all 
the  otiior  mcnilijrs  of  tho  court,  to  talcu  tho  record  and 
write  an  opini(m  during-  tho  vacation,  which,  if  ag-reed  to, 
should  be  read  1)V  some  nuMuber  of  the  court  at  the  next 
term.  I  conf«'ss  that  this  re(juest  was  '^n'atifving'  to  me,  as 
it  convinced  me  that  my  views  were  entitled,  at  least,  to 
lespectful  consideration,  and  especially  on  questions  of 
chancei'y  law,  which  was  further  evidenced  by  the  fact  that 
most  of  the  chancery  records  had  been  "i von  tomeaftorthe 
case  of  IJallanco  v.  Underiiili.  Of  course  I  took  tho  reconl 
under  tlie  ])eculiar  circumstances  with  great  satisfaction, 
and  resolvetl  to  do  my  very  l)(>st  in  preparin<j  what  I  su[)- 
])osod  to  be  my  hist  judicial  o]>ini«m,  and  I  did  expend  a 
great  deal  of  labor  upon  that  o])inion,  and  especially  up(tn 
the  (juestion  as  to  what  notice  shall  affect  a  subse(]ucnt  pur- 
chaser of  real  estate.  Bv  a  careful  investigation  and  c<»m- 
])arisons,  I  discovered  what  I  had  never  noticed  before,  that 
both  Kent  and  Story  alike,  had  laid  down  radically  different 
rules  to  govern  this  questi(m  of  notice,  under  precisely  the 
same  circumstances,  and  after  reviewing  a  large  number  of 
decisions,  both  in  England  and  America,  I  found  it  impos- 
sible to  deduce  any  satisfactory  rule  from  them,  and  the  rule 
which  I  did  finally  formulate  may  be  as  difficult  in  its  appli- 
cation to  particular  cases  as  those  which  had  been  laid  down 
by  others;  however,  I  sought  to  so  frame  it  that  it  might  be 
applied  to  all  cases,  though  the  facts  proved  might  be  ever 
so  variant. 


THE  CONFERFNCE  ROOM. 


181 


IV. 


8Ar,Al!IKS  OF  .irruiFS — ITIST(»KV   OK    IIIK   rofirr  IIJoM    IIIK  IlKfJIX- 
NIXU — IIAKDSJIIII'8  (»K  TUAVKL  IX  ATTKMHN(i  Col  KT. 


Tho  nnxt  case  to  wliicli  I  nm  inclined  to  r(»fcr  is  tlmt  of 
Scchiv  V.  Potcns,  5  Gihn.  l.'Jo.  Tin;  only  (|U('stion  ui'isin<i'  in 
lliat  case  was  wlu'tlun'  tlio  ooninion  law  of  Kn^land,  wliidi 
r('(|uirod  that  the  owner  of  domestic  animals  shonld  I't-sti-ain 
tlicni  froiri  yoin*,'  on  unindoscd  premises  of  another,  was  in 
force  iu  this  State  or  not.  TIk!  case  Avas  tried  befoin;  me  at 
tho  Peoria  Circuit  in  iS-tT.  I  liad  previously  bi'stowed 
great  labor  and  care  in  examining  the  «piestion  and  tJKtut^ht 
1  understood  it  thorou;,ddy,  and  upon  tlu^  trial  I  instructed 
the  jury  that  the  common  law  of  Kn^land  prevailed  here. 
and  that  the  owners  of  stock  wore  liable  for  (lama«>es  if 
})ermitted  to  stray  on  the  uninclosed  lands  of  another. 

After  the  case  had  been  ar;^ued  and  submitted,  and  we 
retired  to  the  conference  room  with  the  record,  W(^  all  ex- 
pressed our  opinions  of  the  case.  No  assi<;'nnient  of  the 
record  Wtas  made  to  any  one  to  write  the  opinion,  noi  was 
any  vote  taken  as  to  what  the  decision  should  be,  but  [  at 
least  supposed  that  it  would  bo  consitlercd  at  a  future  con- 
ference, when  each  membor  of  the  court  would  have  an 
opportunity  of  assignin<^  his  reasons  for  the  conclusion  at 
which  he  arrived;  and  so  tlie  case  was  passed,  and  the  con- 
ference proceeded  to  consider  other  cases. 

For  several  days  this  case  was  not  again  refei'red  to. 
Finally  an  opinion  was  read  reversing-  the  judgment,  which 
was  approved  by  a  majority  of  the  court,  holding  that 
the  common  law  had  boen  repealed  by  tho  first  section 
of  the  law  of  1819,  and  also  that  it  Avas  not  api)licable  to 
our  condition  in  life,  as  existing  here,  and  tluit  our  people 
had  always  supposed  that  the  law  required  every  man  to 
inclose  his  own  premises  to  keep  off  the  stock  of  others 
roaming  at  large. 

To  sa}'  that  I  felt  chagrined  and  mortified  at  being  thus 


182 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


■bit' 


ignorod  hy  the  other  members  of  the  court,  expresses  my 
feelings  mildly.  The  case  liad  been  considered  by  them 
outside  the  ccmference,  and  it  Avas  manifest  that  they  had 
studiously  avoided  any  intercourse  with  me  on  the  subject. 
[  was  a  member  of  tlie  court  Avith  as  many  rights  and  du- 
ties in  connection  Avith  it  as  either  of  the  other  members, 
and  to  pi-actically  expel  mo  from  it  l)es])oke  some  cogent 
reason,  Avhich  they  did  not  care  to  explain  to  me.  To 
assunu?  tliat  I  Avould  unduly  endeax'or  to  secure  a  decision 
alfirming  my  ruling  on  the  circuit,  as  might  naturalh'be  im- 
})lied  from  being  thus  excluded  from  the  conference  on  the 
case,  I  felt  sure  A\'as  not  justified  by  my  past  action  as  a 
member  of  the  court.  They  certainly  knevA'  that  I  had 
ncA'er  shoAA-n  any  sensitiA'eness  at  having  my  oAvn  decisions 
reversed,  but  had  ahvays  shown  an  ardent  desire  to  obtain 
correct  decisions,  Avhether  they  might  aiKrm  or  rcA'erse  m\' 
circuit  rulings.  The  case  of  Kimball  v.  Cook.  1  Gilm.  423, 
had  been  heard  l)efore  the  nine  judges,  and  Avhile  I  had 
heard  the  argument  I  declined  to  vote  upon  it,  l>ecause  I 
Avas  in  great  doubt  Avhether  my  decision  upon  the  circuit 
Avas  right  or  not,  and  I  saAv  it  Avould  require  a  most  labori- 
ous examination  of  the  statute  to  satisfy  myself  ois  that 
])oint;  but  Avlien  the  vote  Avas  taken  it  Avas  found  that  four 
members  of  the  court  voted  for  affirming  and  four  for  rcA'ers- 
ing.  While  that  Avould  affirm  my  judgment  by  an  equal 
division  of  the  court,  I  was  by  no  means  satisfied  that  the 
decision  would  be  right,  and  so  consented  to  take  the 
record  and  Avrite  out  an  opinion  Avhich  Avould  decide  the 
case,  AvhichcA^er  AA^ay  I  might  conclude  the  laAvto  be.  I  did 
so,  and  after  a  A'ery  caref  al  examination  of  the  statute  I 
Avas  entirely  satisfied  that  I  had  committed  an  error  in  the 
court  beloAV,  and  so  wrote  out  an  opinion  rcAersing  my  own 
judgment,  and  Avlien  I  read  it  in  conference  three  of  the  four 
who  had  voted  for  affirmance  appeared  to  be  conA'inced 
with  me  tiiat  the  judgment  should  be  rcA'^ersed,  and  so  it 
Avas  done,  and  my  opinion  Avas  adopted  as  the  opinion  of 


THE  CONFERENCE  ROOU 


183 


tho  court,  excepting  Judge  Young,  who  wrote  a  (li.-;senting 
o])inion. 

Indeed,  I  thought  my  associates  sliouhl  have  appreciated 
tliat  my  only  desire  was  to  have  cases  deci(hMl  according  to 
tlie  law,  without  the  least  regard  as  to  whether  I,  or  some 
other  judge,  had  made  the  decision  in  the  lower  court,  which 
was  under  review  at  the  time.    I  know  I  was  just  as  anxious 
to  reverse  my  own  decisions,  when  satisfied  of  the  eri'or,  as 
if  they  had  been  made  by  another  judge.     My  onlv  desire, 
and  my  aml)ition,  Avas  to  lay  down  the  law  in  the  Supreme 
Court  so  that  it  Avould  stand  the  test  of  time  and  scrutiny, 
rather  than  to  perpetuate  an  error  upon  the  records  of  tlii^ 
court  from  a  false  pride  of  oi)ini<m,  which  would  afterwar<l 
be  found  to  be  erroneous.     I  felt  that  lasting  fame  couhl 
only  be  secured  by  right  decisions  at  the  last,  and  that  by 
affirming  an  error  I  could  only  Aveaken  Avhat  reputati<m  I 
might    otherwise  acquire.     It  is  no   reflection   upon   the 
capacity  or  integrity   of  a  judge    that    his   decisions  at 
nisi  prius  should  be  reversed  on  a])peal.     There  he  must 
decide  cases  upon  first  impression,  Avithout  that  thorough 
examination  Avhich  Avould  enable  him  to  form  a  nuitured 
judgment.     Chancellor  Walworth  Avas  taken  from  the  cir- 
cuit bench  and  made  chancellor  of  the  State  of  Xew  York, 
and  yet,  Avhoever  Avill  liaA^e  the  curiosity  to  examine,  Avill 
see  that  proportionally  more  of  his  decisions  as  circuit  judge 
Avere  reversed,  than  Avere  those  of  any  other  judge  Avho  ever 
sat  upon  a  circuit  bench  of  that  State;  still  his  great  reini- 
tatlor^  as  a  jurist"  was  never  impaired  by  that  circumstance. 
If  I  know  myself,  I  know  that  I  never  had  the  least  sensi- 
bility about  having  my  judgments  rendered  on  the  circuit 
reversed  in  the  Supreme  Court,  and  I  never  admitted  the 
idea  that  it  Avas  for  that  reason  that  I  Avas  excludetl  fi-om 
the  conference  in  the  consideration  of  this  case.    rerha[)s  it 
Avas  because  the  other  judges  did  not  care  to  bear  the  inflic- 
tion of  hearing  me  argue  the  question  in  conference,  Avhich 
had  been  so  well  argued  at  the  bar,  and  upon  which  their 
minds  Avere  conclusively  made  up;  but  for  all  that  I  did  feel 


'  ^I 


I 


I 


If.  I 


'J- 


II 


! 


184 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


it  keonly,  and  at  once  resolved  to  write  a  dissenting  opinion, 
in  whicli  I  thonght  I  could  demonstrate  that  tlie  decision 
had  not  been  the  hwv  before,  although  it  must  become  the 
hnv  afterward,  at  least  for  a  time,  and  I  did  my  best  to  do 
so.  I  certainly  showed  that  the  first  section  of  the  act  of 
1811>,  "Which  was  strongly  relied  upon,  had  been  repealed  and 
never  afterward  re-enacted;  that  many  decisions  of  as 
respectable  courts  as  any  in  the  Union,  and  exactly  in  point, 
sustained  a  ruling  of  the  court  below,  and  that  Avhether  it 
was  contrary  to  the  genius  of  our  institutions,  and  of  the 
habits  and  notions  of  our  peo})le,  were  questions  for  the 
Legislature,  and  not  for  the  court  to  determine.  I  under- 
stand that  the  Legislature  has  since  that  time  enacted  several 
laws  modifying  or  changing  the  rule  laid  down  by  the  court 
in  that  case,  but  I  have  not  taken  the  trouble  to  examine 
them. 

In  looking  over  the  report  of  that  case  after  the  lapse  of 
so  many  years,  I  see  that  my  dissenting  opinion  was  uni)ar- 
donably  long,  and  that  some  of  its  expressions  were  more 
pungent  than  I  wish  they  had  been,  but  I  am  still  satisfied 
that  I  was  right  in  my  conclusions  as  to  Avhat  the  law  was. 
It  is  evident  that  when  I  wrote  that  opinion,  I  could  not 
but  feel  the  sting  which  had  been  provoked  by  Avhat  seemed 
to  me  to  be  a  discourtesy;  in  this  I  am  now  satisfied  that  I 
was  wrong,  for  I  am  entirely  convinced  that  no  discourtesy 
was  intended.  I  am  happy  now  to  remember  that  the  event 
never  produced  a  shadow  of  coolness  or  ill-feeling  between 
us;  the  same  harmony  and  personal  friendship  always  after- 
ward existed  as  it  had  done  before. 


V. 


ANECDOTES   OF    LINCOLN    AND   OTHERS — STORIES    OF   CELEBRATED 

TRIALS. 

"When  Judge  Breeso  took  his  seat  upon  the  bench  of  the 
Supreme  Court  for  the  second  time,  the  court  consisted  of 
Breese,  Skinner  and  myself.    In  the  course  of  conversation 


I  > 


■li 


^ki  i 


ONIAS   C.    SKINNER. 


:  "'IT 


11 


I' 


^' 


H  f. 


'II'   i 


I' 


!i 


ij' 


•li  ^ 

:       i 

f'! 

1 

ill. 

THE  CONFERENCE  ROOM. 


185 


Ave  discovered  that  we  all  three  came  from  Oneida  county. 
X.  Y.,  and  this  remarkal)le  incident  soon  became  known  to 
tiie  bar,  and  was  the  subject  of  comment  among  them.    The 
conference  room  at  Sin-ingfield  adjoined  that  of  the  libi-arv, 
where  the  lawyers  usually  assend)ied  in  the  evenings,  exam- 
ining their  cases  and  making  u})  their  briefs,  whik'  we  were 
in  conference  in  the  adjoining  room.     Generally  .Mr.  Lincol  n 
was  present  in  the  library  with  the  other  members  of  the 
bar  at  work  upon  his  cases.     AVith  rare  exceptions  not  a 
word  could  be  heard  from  the  librai-y  room  till  about  nine 
o'clock  in  the  evening,  when  a  boisterous  laughter  Avould 
fi-equently  break  out  there,  which  put  an  end  to  tlieir  woi-k 
for  that  evening,  and  had  a  strong  tendency  to  suspeiul  work 
in  the  conference  room.     AVe  knew  at  once  that  :\rr.  Lincoln 
was  telling  some  new  story,  for  which  he  was  so  celebrated, 
and  the  temptation,  to  me  at  least,  was  very  strong  to  go 
out  and  hear  it.     This  occurred  very  early  in  the  first  term. 
^vi,;,.i>  ^ve  held  in  Sj)ringlield,  after  Breese  had  joined  us  at 
IMount  Vernon.     When  I  passed  into  the  library  room  Mi-. 
Lincoln,  who  was  seated  on  one  of  the  tables,  his  feet  hang- 
ing down  nearly  to  the  floor,  said :  "  Judge  Caton,  I  want 
to  know  if  it  is  true,  as  has  been  stated,  tluit  all  three  of  you 
judges  came  from  Oneida  county,  Xew  York'  ?  *'     I  told  him 
I  believed  it  was  so,  whatever  that  might  indicate.     "  Onh/ 
ilili<r  he  said,  '■^  I  could  never  imdcrstand  Jtcfove  wJnj  this  ?/.v/.v 
a  One-i-dea  cokH:'     Of  course  this  produced  a  laugh  so  loud 
and  universal  that  the  other  judges  had  to  come  out  and 
see  Avhat  was  the  matter,  and  when  it  was  explained  tlun- 
joined  in  the  merriment  as  cordially  as  the  rest  of  us. 

I  must  say  here  that  I  was  usually  glad  to  learn  in  that 
way  that  Lincoln  was  in  the  library  room,  thus  diverting 
the  attention  of  the  other  members  of  the  bar  from  tlu^ 
drudgery  of  the  work:  in  which  they  had  lieen  engaged  bv 
telling  some  amusing  story;  both  before  and  after  that  time, 
and  in  the  conference  room,  Ave  Avere  not  loath  tohaA^eour 
attention  diA^erted  by  the  same  means,  at  least  for  u  time. 


'i«: 


in? 


^1 


'M 


Tr 


l.SG 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


I/: 


Hoyond  comparison,  the  most  (IKTicult  task  I  ever  assumed 
at  the  recjiiest  of  my  .'issociates  was  to  write  an  oi)iniou 
revorsin<^  the  judgmont  in  the  case  of  The  People  v.  Thur- 
her.  l.'J  111.  i")')4,  hut  it  just  had  to  be  done.  It  would  have 
heen  a  very  easy  tusk  to  write  .in  opinion  aifirmin<^  the 
judf^ment,  hut  that  would  have  entailed  a  public  calamity, 
which  could  not  be  thought  of  for  a  moment.  Tliat  was 
one  of  those  cases  where  consequences  had  to  be  taken  into 
consideration  and  given  an  absolutely  controlling  influence, 
and  my  duty  was  to  hunt  up  shreds  and  scraps  of  statutes 
to  sustain  the  decisicm,  and  relying  as  little  as  possible  upon 
the  consequences  of  an  alKrmancc^  which,  after  all,  consti- 
tuted really  the  controlling  consideration. 

To  have  affirmed  that  judgment  would  have  been  to  sus- 
pend the  operations  of  all  our  election  laws  and  held  th(Mu 
suspended  until  n  statute  could  have  been  passed  to  cure  an 
omissicm  in  an  existing  statute. 

In  oliedience  to  the  Constitution  of  1S48  the  first  General 
Assembly  which  assembled  under  that  constitution,  passed 
a  law  al)olishing  the  Court  of  County  Commissioners  and 
the  ofRce  of  clerk  of  that  court,  and  creating  a  County 
Court  with  a  clerk,  and  conferring  upon  it  judicial  powers 
which  had  never  been  exercised  by  the  County  Commission- 
ers' Court,  as  well  as  the  powers  "which  had  previously 
existed  in  the  County  Commissioners'  Court,  and  of  course, 
it  followed  that  the  clerk  of  the  new  court  would  exercise 
the  powers  devolving  upon  him  in  relation  to  the  jurisdic- 
tion conferred  u]ion  the  court ;  but  the  previous  laws  had 
required  the  clerk  of  the  County  Commissioners'  Court  to 
])erform  many  ex  officio  duties  in  the  execution  of  many 
other  general  laws  Aviiich  had  no  connection  whatever  with 
the  jurisdiction  of  that  court ;  and  without  the  performance 
of  these  duties  by  some  one  authorized  by  law  to  perform 
them,  their  operation  must  be  absolutely  suspended,  and  yet 
the  Legislature  had  omitted  to  pass  any  statute  devolving 
these  duties  upon  the  clerk  of  the  new  County  Court,  or 
upon  any  other  person  or  officer,  and  my  task  Avas  to  find 


THE  CONFERENCE  ROOM. 


187 


some  authority  for  hol(lin<^  tliat  tlicso  <'.r  ojjido  (liiti(>s  liiul 
been  lawfully  exercised  l)y  the  clei-k  of  the  new  County 
Court.  I  rejjeat  that  this  had  to  be  done  or  else  the  wheels 
of  government,  to  a  vital  extent  at  least,  must  be  sus- 
pended. 

I  ransacked  the  statutes  thorou^'hly,  and  found  in  dif- 
ferent acts  many  provisions  and  expresiuons  which  showed 
clearly  that  the  Legislature  supposed  and  l)elieved  that  ex- 
isting laws  authorized  the  clerk  of  the  new  court  to  [)erform 
all  of  these  f-.^  o^>/o  duties  which  had  been  imposed  u]»on 
the  clerk  of  ihe  old  court,  l)ut  that  was  all.  From  tliese 
expressions  1  inferred  that  it  Avas  the  will  of  the  Legislature 
that  these  duties  should  be  ])erfonned  by  the  clerk  of  the 
new  court;  that  although  that  will  Avas  not  expressed  in 
any  separate  and  affirmative  statute,  it  was  cleai-ly  nuiuifest 
from  the  language  Avhich  the  Legislature  had  uscmI  in 
several  different  acts,  and  that  the  will  of  the  Legislatui-e 
clearly  expressed  in  several  acts,  when  taken  together,  con- 
stituted the  law  of  the  case  as  much  as  if  that  will  had  l)een 
expressed  in  one  distinct  statute. 

Now,  this  was  the  best  I  could  do  in  support  of  a  decision 
which  had  to  be  made,  and  as  my  af:sociates  could  suggest 
nothing  better  it  was  made  to  pass,  and  the  government 
Avent  on  quietly  as  before. 

Strange  to  saj',  nine  years  later  Ave  found  ourselves  con- 
fronted AAith  a  similar  ditticulty  in  the  case  of  Wood  v. 
Blanchard,  19  111.  38,  and  it  is  a  little  singular  that  tAvo 
such  hard  questions  as  these  should  be  ])resented  to  us  for 
decision,  Avhile.  I  A^enture  to  say,  nothing  analogous  to  them 
had  CA'er  been  presented  to  any  other  court  for  adjudication. 
In  this  case  it  appeared  that  the  old  constitution  created 
the  olRce  of  coroner,  the  mode  of  Avhose  election  and  duties 
Avere  subsequently  prescribed  by  acts  of  the  Legislature. 
By  the  adoption  of  the  Constitution  of  IS'IS,  the  old  con- 
stitution Avas  superseded,  and,  in  fact,  repealed,  and  so  Avas 
the  office  of  coroner  abolished,  and  not  re-created  in  the 
new    constitution,   nor  had  any   subsequent    act    of    the 


I 

■i 
if 


, 


I  p> 


i 


I! 


;  ] 


I 


188 


EAIiLY  DEN(  il  AND  BAR  OF  ILLINOIS. 


Le^isliitui'o  created  that  office;  and  yet,  for  nine  years,  \hh>- 
pie  had  been  electini^-  coroners  who  liad  been  diseluirn-inn- 
th(^  duties  of  that  oHice;  and  tlie  only  question  ])resented 
was  whether  there  was  such  an  office,  and  could  be  such  an 
officer,  in  this  State.  To  have  decided  otherwise  would 
have  created  incalculable  mischief.  Many  titles  depended 
ii[)on  the  validity  of  their  acdons,  especially  when  acting  as 
sheriffs,  and  the  necessity  for  allinning  the  decision  in  the 
case  was  scarcely  less  imperative  than  was  that  of  reversing 
the  decision  in  the  other;  certainly  no  allirmative  law  had 
been  passed  for  the  purpose  of  creating  such  an  office,  but 
it  was  equally  certain  that  several  laws  hiid  been  })assed, 
showing  that  the  law-inalcing  power  assumed  that  there  was 
sucii  an  office  and  had  legislated  upon  that  assumption. 
Iiuleed,  the  convention  which  had  abolished  the  office  had 
l)rescribed  in  its  schedule  certain  duties,  which  should  be 
])erformed  by  the  coroner  after  its  adoption.  By  a  law 
duly  enacted  after  the  adoption  of  the  new  constitution  a 
})rovision  Avas  made  for  the  election  of  a  coroner  whenever 
a  vacancy  should  occur.  Now,  while  it  was  admitted  that 
no  law  had  been  })assed  expressly  creating  the  otKce  of 
coroner,  this  law  had  been  ])assed  providing  for  his  election 
and  prescribing  his  duties,  in  some  cases  at  least.  This,  we 
held,  clearly  showed  that  it  was  the  intention  of  the  law- 
making power  that  there  should  be  such  an  officer  as  a 
coroner,  and  consequently  it  must  have  been  equall}^  the  in- 
tention of  the  law-giver  that  there  should  be  such  an  office, 
which  might  be  filled  and  held  by  such  an  officer. 

The  rule  established  by  these  anomalous  cases  may  be 
thus  formulated :  the  will  of  the  law-maker  is  the  law,  when 
expressed  in  a  constitutional  way,  and  we  may  look  through 
all  its  statutes  to  find  a  legitimate  expression  of  that  will, 
and  when  found  it  is  the  duty  of  the  courts  to  enforce  it. 

I  say  this  is  the  rule  fairly  deducible  from  the  decisions 
of  these  two  cases,  and  I  still  think  it  is  in  perfect  harmony 
with  the  long  and  well  settled  rules  for  the  construction  of 
statut'os,  and  that  it  fairly  justified  those  decisions,  though  I 


THE  CONFERENCE  ROOM. 


ISO 


CDiifosf,  that  in  wrltin,<T  that  opinion  T  felt  as  if  actiiif;-  iindci' 
a  sort  of  constraint  iniposi'd  by  an  altsohito  noct'ssity,  which 
1  have  never  felt  when  ileci(h'ng  any  other  case.  I  do  not 
think  it  probable  that  any  other  court  will  have  occasion  to 
use  tlieiu  as  precedents  for  the  want  of  cases  paraUel  to 
these. 

The  dissentient  might  formulate  another  rule,  pe]'ha|)s 
scarcely  h^ss  consistent  with  the  General  ruk>sof  tlie  law  for 
the  construction  of  statutes,  which  nuiy  be  stated  thus:  if 
the  law-maker  actually  believes  or  sup|)oses  the  law  to  lie  s(t 
and  so,  and  expresses  that  belief  in  a  constitutional  way,  that 
docs  not  make  it  the  law,  for  he  does  not  thereby  atlirma- 
tively  declare  that  it  shall  be  the  law.  Or  he  might  state  it 
thus:  if  the  law-maker  misai)i)rehen(ls  the  law,  no  matter  in 
what  form  that  misapprehension  may  be  expressed,  that 
does  not  change  the  law. 

In  this  respect  the  misapprehetision  of  the  legislative 
department  as  to  what  the  law  is,  has  a  different  effect  fi-om 
the  mistakes  of  the  judicial  department;  for  if  the  Su[)renie 
Court  mistakes  the  law,  its  decision  nuuh;  under  such  mis- 
apprehension actually  changes  the  law,  at  least  for  the  time 
being. 

The  case  of  Baxter  v.  The  People.  3  Gil.  30S,  pi'es(Mited 
some  ver3Mmportant  questions  arising  under  our  Criminal 
Code,  in  Avhich  the  duty  was  assigned  to  me  to  write  the 
opinion  of  the  court,  the  first  of  which  was,  whether  a  de- 
cision of  the  Circuit  Court  overruling  a  motion  for  a  contin- 
uance could  be  assigned  for  error,  and  I  Avas  instructed  to 
hold  that  a  decision  of  such  amotion  in  a  criminal  case  rests 
in  the  sound  discretion  of  the  court,  and  could  not  be  as- 
signed for  error;  that  the  statute  of  the  21st  of  July,  1^:^7, 
allowing  error  to  be  assigned  on  decisions  denying  motions 
for  a  continuance,  only  ap])lied  to  civil  cases.  In  Vick'ers  v. 
Hill,  1  Scam.  80S,  the  court  had  decided  that  the  Practice 
Act  of  1827,  Avhicli  confessedly  only  applied  to  civil  cases, 
[)rovided  that  decisions  of  motions  for  continuances  could 
not  be  assigned  for  error,  and  we  held  that  the  amendment 


I 

ir 
It 

111 


IDD 


EAIILY  BENX'II  AND  BAR  OF  ILLINOIS. 


■  I 


li! 


'I 


? 


n 


:    ill 


to  tliat  act  |)iisso(l  in  iSM"  was  only  intended  t<»  ajjply  to 
thosocascs  providcMl  for  in  tlioact  to  which  it  wasan  aincial- 
incnt.  J  s(M'  that  hy  Sec.  <».'{  of  the  Practice  Act  in  thi' 
Statutes  of  1MT4  overruling  motions  for  continiumce  in  crim- 
inal cases  may  ho  assigned  for  ei'n)r,  hut  I  have  not  traced 
th«'  statutes  hack  to  see  when  this  innovation  was  Jirst  intro- 
duced hy  the  Legislature. 

For  the  first  time  in  this  case  wo  were  called  upo!!  to  give 
a  construction  to  the  statute  which  declares  that  accessoi'ies 
to  crimes  "shall  he  deemed  and  considered  as  principals  and 
]»unished  accordingly." 

The  indictment  against  JJaxter  was  for  the  murder  <»f  Col. 
Davenport,  as  principal.  The  evidence  showed  that  he  was 
accessory  before  the  fact,  aiul  the  (juestion  was  whether  he 
should  have  been  indicted  as  accessory,  and  concluded  with 
the  avowment  that  he  thereby  iiecame  ])rincipal,  or  whether 
the  indictnuMit  against  him  as  princi|)al  was  sustaim'd  by 
the  ])roof  that  he  was  accessory.  After  much  consideration 
a  majority  of  the  court  determined  that  he  was  ])roi)erly  in- 
dicted and  convicted  as  principal  upon  proof  that  he  was 
accessory  before  the  fact,  and  I  understand  that  that  rule 
has  been  followed  ever  since  in  this  State  without  (piestion, 
and  that  the  anarchists  Avere  lately  convicted  and  executed 
by  the  ap])lication  of  this  rule,  without  even  asking  the 
court  to  consider  it;  but  it  was  not  originally  ado])teil  with- 
out doubts  and  misgivings;  and  Mr.  Justice  Koerner,  after 
all.  dissented,  and  maintained  his  dissent  in  a  very  strong- 
opinion,  holding  that  the  indictment  sliouhl  have  stated 
the  facts  of  the  case  as  they  really  existed,  so  that  the  i)ris- 
oner  would  have  been  fully  advised  of  what  he  was  to  meet 
and  controvert  on  tlie  trial. 

Another  very  imj)ortant  question  was  decided  in  this  case. 
The  trial  w'as  commenced  on  Friday  and  the  case  submitted 
to  the  jury  on  Saturday,  who  brought  in  a  verdict  on  Sun- 
day, which  was  received  and  recorded  and  sentence  of  death 
was  i)assed  on  that  day.  This  was  assigned  for  error  upon 
the  ground  that  Sunday  is  dies  nonjuridicus,  and  that  the 


Mill  i. 


n 

lit 

h 


if 


!.  I 


\U'i 


hi: 


PINKNEY    H.    WALKER. 


^I.i. 


THE  CONFKRKNCE  UOOJI. 


li'l 


coiii't  IukI  no  jurisdii'tioM  to  do  ii  judicial  act  on  lliat  dav. 
Tins  position  was  sustained  so  far  as  the  sentence  was  con- 
e;'i'ned,  and  so  tiio  jud;^inent  was  reversed,  but  we  also  held 
that  the  receiving''  of  the  verdict  was  not  a  judicial  act,  and 
henc(!  it  was  properly  received  on  that  day. 

Tluiii  the  tjuestion  aro.ie  whether  th*,'  reversal  of  the  jud^- 
niejil  carried  with  it  a  reversal  of  all  the  anterior  procced- 
iiijis.  Undouhteilly  the  wei;4'ht  of  authority  in  the  Knulish 
courts  su|>|)orted  that  proposition,  and  that  tlu;  prisoner 
should  have  been  dischar;L'ed  forever  for  the  crinu'  of  which 
he  had  been  •^•uilty;  but  we  thou;4'ht  we  found  an  al»undance 
of  authority  for  holding  that  the  I'eversal  <jf  the  jiidnnu-ut 
only  reversed  that  which  was  erroneous,  oi\  in  hu-l,  void,  for 
we  held  that  the  sentence  of  death  which  was  |)i'onounc('d 
•  Ml  Sunday  was  absolutely  void  for  the  want  of  jni'isdictiou 
to  do  any  judicial  act  on  that  day,  and  so  we  I'eniandcd  the 
case  to  the  Circuit  (-ourt  with  instiaictions  at  its  \u  \{  term 
to  ])ass  the  sentence  of  the  law  upon  the  verdict  wh'u-h  had 
already  been  ])r()|KM'ly  received  and  recorded,  which  was 
held  to  bo  a  ministerial  act  onlv. 


>' 


VI. 


APPOIXTMEXT   OF    nXcKXHV    H.  WAI.KKR    AS   JUUGK — SKKTCU    OF 

HIS    IJFK. 


I)urin,fr  the  Dcceniber  term  of  the  court,  isno.  ,Tud,n«'  Skin- 
nei'  asked  mo  if  I  was  well  acquainted  with  Gov.  JJissell.  I 
answered  him  that  I  was  pretty  well  actpiainted  with  the 
«^overnor,  lie  then  told  mo  that  he  was  about  to  resiuu 
liis  seat  upon  the  bench,  but  would  only  do  so  ujjon  the  con- 
dition that  rinckney  II.  Walker  would  be  appointed  to  suc- 
ceed him,  and  that  as  the  governor  was  a  rei)ublican  and 
Judge  AValker  a  democrat,  he  might  not  be  inclined  to  niakt? 
such  an  appointment,  and  requested  me  to  seo  the  governor 
and  ascertain  if  he  would  a])point  Walker  in  case  of  such  a 
vacancy.  I  accordingly  called  U])on  the  governor  and 
frankly  stated  Judge  Skinner's  proposition  to  him,  and  also 


y  '■ 


V.)'2 


EARLY  BENX^H  AND  BAR  OF  ILLINOIS. 


} 


, 


told  liiin  that  wliile  I  did  not  know  Jud,r;c-  Vv''a]kcr  persoir 
ully,  I  was  entirely  satisfied  that  lie  was  (.^specially  qualitied 
lor  a  place  on  the  supreme  bench,  and  tliat  he  would  dis- 
charf^e  his  duties  there  honorably  to  the  governor  who 
should  appoint  hiin,  and  be  useful  to  the  public  service. 

lie  replied  that  he  would  take  the  matter  into  considera- 
tion, and  would  consult  hi»  confidential  friends  on  the  sub- 
ject, especially  those  who  knew  Judge  AValker  personall}', 
and  that  he  would  let  me  know  later. 

Perhaps  a  week  after  this  interview  I  received  a  note 
from  the  governor  stating  that  he  was  very  favorably  ini- 
jiressed  with  Judge  Walker  from  what  he  had  heard  con- 
cerning him,  but  that  he  would  prefer  to  have  a  personal 
interview  with  the  judge  before  coming  to  a  final  decision 
on  the  subject.  I  assured  him  that  I  would  arrange  for 
such  an  interview  as  soon  as  practicable,  and  immediately 
telegra]>lied  Judge  Walker  to  come  to  Springfield  at  once, 
but  did  not  explain  the  reason  for  the  request. 

Within  a  day  or  two  afterward  Judge  Walker  put  in  an 
n])})earance,  when  I  was  introduced  to  him  for  the  first  time, 
and  the  reason  of  my  message  was  explained  to  him;  he 
expresstid  a  Avillingness  to  accept  the  office  should  it  be 
offered  him,  although,  at  the  June  election  following,  he 
would  have  to  submit  his  claims  to  a  vote  of  the  people  in 
a  division  which  was  largely  republican  politically. 

At  that  time  politics  cut  very  little  figure  in  judicial  elec- 
tions in  any  part  of  the  State.  But  a  year  or  two  beforfi  I 
had  been  elected  by  a  two-thirds  vote  of  the  people  while 
two-thirds  of  the  voters  of  my  district  were  opposed  to  the 
])olitical  party  with  which  I  affiliatcvl;  but  in  fact,  this 
affiliation  was  more  nominal  than  otherwise.  During  all 
the  time  I  was  on  the  bench,  I  never  made  a  political  speech 
or  attended  a  political  meeting,  or  in  any  way  discussed 
political  questions  in  public,  or  even  in  private  to  any  con- 
siderable extent,  and,  indeed,  I  rarely  voted  except  on 
special  occasions. 

I  never  would  vote  for  any  candidate  simply  because  lie 


Mr 


Hi 


THE  CONFERENCE  ROOM. 


V.):\ 


was  the  nominee  of  my  party,  or  unless  I  believed  liin)  to  lie 
as  meritorious  in  every  respect  as  liis  opponent  of  the  op- 
l)ositc  party.  1  always  believe*],  and  still  believe,  that 
jsolitics  should  find  no  place  on  the  judicial  bench,  and  that. 
1  always  feared,  wouhl  be  tiie  «riviit  dano(n-  of  making-  the 
judiciary  elective;  and  I  still  fear  that  <lan<>er  may  come  of 
it,  but  I  have  been  happy  to  observe  that  the  peo))le  «.;'en- 
erally  seem  to  appreciate  that  dan'-'er,  if  the  professional 
l)oliticians  do  not. 

I  am  ])leased  to  say  now,  that  Judge  Walker's  eminent 
(pialifications  for  the  bench  were  duly  ap|)reciated  by  the 
])eopIe  of  his  division,  and  that  he  was  successively  elected 
ever  after,  so  hmo-  j,s  he  lived,  and  that  he  died,  still  wearinn- 
the  ermine  untarnished. 

During  all  the  fifteen  years  that  I  sat  up<m  the  bench  of 
three  judges,  all  belonged  to  the  same  i)olitical  jyarty,  and  I 
do  not  believe  that  any  man  living  ever  even  suspecterl  that 
party  politics  had  the  least  influence  ujxrn  our  judicial  <le- 
cisions.  During  that  time  five  or  six  cases  came  before  us, 
of  which  suspicious  persons  might  think  that  they  had  n  polit 
ical  ])earing,  but  it  so  hai)pened  that  in  all  of  tliese  cases  we 
decided  against  what  some  might  suppose  would  be  favoral>le 
to  our  political  ])arty.     Pardon  this  digression. 

That  evening  I  Avent  with  Judge  Walker  to  visit  the 
governor,  and  our  visit  was  certainly  a  very  pleasant  one. 
(tov.  liissell  was  that  sort  of  a  man  with  whom  any  gentle- 
man could  ])ass  an  hour  most  deliirhtfullv 

fie  was  a  gentleman  liimself  in  the  highest  sense  of 
the  term.  He  was  a  man  of  very  marked  ability.  Jle  was 
an  excellent  lawyer  of  the  most  spotless  integritv.  Jle  had 
won  a  high  reputation  as  a  soldier  in  the  Afexican  war,  and 
was  as  sensitive  for  his  honor  as  for  the  ai)]>le  of  his  eve. 

The  next  day  the  Secretary  of  State  intimated  tome  that 
.Fudge  Walker's  commission  was  made  out  and  would  be  de- 
livered  so   soon  as  Judge  Skinner's  resignation  should  be 
received.     I  then  took  Judge  Skinner's  resignation  into  the 
18 


ft 


I- 


HiPM 


il)l 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


'i  I  ' 


!   I 


s('ci'«'tary"s  ollicc  and  delivered  it    to  tlie  Seci'etai'V  of  Slate, 
and  received  .lud,i;'e  Walker's  (•uiimiission. 

Later  on.  in  l^(!4,  when  I  felt  that  an  iniperativcMloniestie 
duty  compelled  me  to  resiii'n  the  hii;h  place  which  I  then 
occupied  on  the  Su|)reme  IJeiich.  1  called  upon  (Tovornoi' 
Vate.s,  and  inl'oiMned  him  that  1  Jiad  some  thou^lits  of  ro- 
siiiMiiut'',  and  asked  him  it'  lie  would  allow  me  to  sue-ccest 
for  his  consideration  the  name  of  my  successor;  he  said 
he  Avould  1k^  most  lia])py  if  I  would  do  so,  and  I  sn<4'H'ested 
th(^  uarno  of  .ItKJu'e  Ueclcwith;  aftcM-  a  few  days"  consid- 
eration he  informed  me  that  he  had  considered  my  suii- 
gestioii,  and  confcM'red  with  his  conlidential  fi'iends  on  tlie 
subject,  and  that  he  had  made  up  his  min<l  that  should  1 
determine  to  resign,  he  would  apjjoint  rludge  J'.eckwith  to 
till  the  vacancy;  and  so  it  was  done. 

In  the  case  of  The  People  ex  rel,  v.  (xovernor  Bissell,  21 
111.  L'2l»,  an  application  was  made  to  the  Su])renie  Court  for 
a  writ  of  mandamus  to  be  dii'ected  to  the  governor,  coni- 
manding  him  to  issue  certain  State  Ixmds  to  the  relator, 
which,  as  was  clainuMl.  an  act  of  the  Legislature  recpiired 
him  to  do;  and  thus  was  i)resented  the  (juestion  wheii.  '^nd 
how  far,  one  of  the  three  depai-tments  of  the  government 
j)ossessed  the  jjower  to  control  another,  and  the  recoi'd  was 
assigned  to  nu'  to  wi'ite  the  opinion  of  the  court.  In  that 
opinion  I  endeavored  to  ])oint  (Uit.  as  l)est  I  could,  to  Avhat 
extent  and  in  what  way,  un(h'r  the  constitution,  one  depart- 
nuMit  could  control  or  influence  the  action  of  another. 
While  necessarily,  in  many  cas(\s.  one  d(^])artm(Mit  may  c<jn- 
trol  or  intluence  the  action  of  another  department,  that  is 
usually,  if  not  univ(M'sally.  done  indiivctly;  as  whei'e  tlu^ 
coui'ts  may  decide  a  law  to  bi'  unc(nistitutional,  which  had 
heeii  passed  by  the  h^gislative  de])artment;  while  the  Legis- 
lature may  restrict  or  extend  the  jui'isdiction  of  the  courts, 
or  the  govcM'uor  nuiy  ])ar(lon  a  ci'im'nal  who  lias  been  con- 
denuuMl  by  the  judiciary.  Such  ])(  wers  ai'e  usually,  if  not 
always,  of  a  restraining  character  ratlun*  than  com])ulsory. 

AVithout  this  wo  ex])ressly  disclaimed  any  authority  on  the 


iimu  i  i. 


fOKVlMJN    UKCKWITH. 


1 


Jl 


l!  :': 


i 


ii 


I 

"I 
i 
I 

I: 

I? 


II 


THE  CONFERENCE  ROOM. 


I'J. 


])!irt  of  the  jiidiciury  to  control  or  direct  the  f^overnor  as  to 
how  lie  should  dischiu-oe  liis  duties  as  ]m\sci-ihed  l)y  the 
constitution  or  the  law,  or  whether  he  should  diseliaro-(^ 
theiu  at  all;  thou<,Hi  he  may  neglect  or  refuse  to  perform  an 
act  required  of  him  to  be  i)erformed,  he  is  as  mueli  hevond 
the  reach  of  the  courts  to  compel  its  perlormance  as  i^,  the 
Lc^'islature. 

^ye  had  no  more  power  to  compel  liim  to  call  an  election 
which  the  law  required  him  to  do,  than  we  had  to  conqM'! 
tlie  Legislature  to  enact  a  law  whicli  tlie  constitution  re- 
quired it  to  enact.  The  judiciary  may  undoubtedly  exercise 
a  restraining  power  indirectly  over  the  acts  of  the  govcM-nor. 
should  he  do  an  act  not  authorized  by  the  constituti(m  or 
the  laws,  by  declaring  such  act  void,  and  so  nullify  it  and 
thus  destroy  its  effect,  as  we  would  an  act  of  the  Legisla- 
ture, which  Ave  might  declare  unconstitutional,  but  we  could 
not  act  directly  upon  him  by  forbidding  him  to  perform 
the  act. 

We  recognized  the  right  of  the  governor  to  call  upon  the 
judiciary  for  its  judgment  of  the  law  in  relation  to  the  i)ei'- 
formance  of  duties  im{)osed  upon  him,  by  submitting  an 
agreed  case,  for  instance,  presenting  the  question,  in  which 
case  he  submits  himself  to  the  jurisdiction  of  the  court, 
when  the  court  will  hear  argunumts  and  decide  it  as  in  other 
cases;  but  even  in  that  case,  should  he  refuse  to  conform  his 
action  to  the  decision  of  the  court,  I  do  not  conceive  that  it 
would  have  the  power  to  compel  him  to  submit  us  it  could 
ordinary  suitors.  I  know  of  no  case  in  which  that  question 
has  been  presented.  It  may  be  said  that  his  having  once 
sulmiitted  CO  the  jurisdiction  of  the  court— that  the'^  court 
luiving  acquired  jurisdiction  of  the  case  and  of  the  person 
in  a  mode  recognized  by  the  law,  it  may  exercise  that  jui-is- 
diction  to  the  end,  according  to  the  general  ])rinciples  of  the 
law  governing  all  other  cases;  but  this,  I  api)rehend,  would 
be  an  exception;  for  even  that  rule  must  have  its  exceptions; 
for  instance,  the  legislative  power  may  pass  a  law  depriving 


i;! 


if 


Tl 


11  M> 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


the  court  of  jurisdiction  in  a  case  p&ndiutc  lite,  al'tor  it  has 
ac([uirc<l  complete  jui'isdiction  of  it. 

Tluis  we  see  that  there  are  a  great  variety  of  Avaws  in 
whicli  one  department  of  the  government  may  exercise  con- 
trol over  another,  but  generally  indirectly,  as  before  stated. 
This  precise  (juestion  was  attem])ted  to  be  raised,  and  it 
was  argued  in  the  case  of  Webster  v.  French,  11  III,  iir»4, 
but  it  was  evaded  rather  than  decided  in  that  case.  That 
l)ill  was  tiled  for  a  specific  performance  of  a  contract  for  the 
sale  of  the  (^uinc\'  House,  whicli  lielonged  to  tiie  State.  An 
act  of  the  Legislature  had  directed  the  governor  to  adver- 
tise the  (juincy  House  for  sale  and  to  receive  sealed  pro- 
})osals  for  it  up  to  the  first  day  of  July  then  next,  and  to 
acceot  the  bid  of  the  liighest  responsible  bidcU'r.  and  as 
.:^t!  .  (  to  execute  a  deed  to  the  purchaser.  Bids  were  re- 
ce!»  i!  ?  ,A  the  governor  liad  accei)ted  the  l)id  of  Ash  <k 
Diller  and  executed  a  cimveyanco  to  them,  thus  vesting  the 
legal  I'^'e.  -.v^  that  bill  was  filed,  claiming  that  the  bid  of 
Ash  ik  iWlh""  vns  J. n  illegal  bid  and  that  the  complainants' 
bid  was  the  higliest  and  best  legal  bid,  and  that  the  governor 
had  decided  that  the\'  were  resi)onsil)le  bichlers.  The  bill 
made  the  governor  and  Ash  A:  Diller  ami  several  otluM' 
bichiers,  parties  defendant.  It  was  demurred  to  and  the 
demurrer  was  sustained  in  the  court  below,  and  uj^on  this 
decision  the  case  was  l)rought  to  tlie  8uj)reme  Court. 

The  governor  raised  no  question  in  the  pleadings  as  to 
the  jurisdiction  of  the  court,  though  the  question  was  raised 
by  defendants'  counsel  in  the  argument  of  the  case. 

We  held,  that  excepting  as  to  the  execution  of  the  deed, 
which  had  already  been  accomplished,  all  of  the  duties  re- 
(juired  of  the  governor  were  merely  ministerial  and  not 
executive,  and  might  have  l)een  authorized  to  be  done  by 
any  other  person;  and  that  the  only  question  in  the  case  was 
that  of  property  rights  between  the  complainants  and  the 
governor's  grantees,  in  whom  the  legal  title  was  now  vested; 
we  })roceeded  to  adjudicate  the  case  as  between  those 
parties,  and  evaded  the  question  as  to  what  we  could  have 


m 


'\ 


THE  CONFERENCE  ROOM. 


107 


(lone  to  enforce  a  decree  re(juirin<j;'  the  governor  to  .-let  in 
liis  executive  capacity,  so  that  (juestion  remained  undecided 
and  unconsidered  until  tlie  case  of  the  J'eoplo  ex  rel.  v. 
G«jv.  Jjissell,  before  referred  to. 

I>iit  tliere  were  several  other  very  ini]iortant  (jnestions 
l)i-esente<l  in  thisQuincy  House  case  for  which  Ave  could  lind 
no  ])r(>cedents  directly  in  ])oint  to  ai<l  us  in  ourtleliheration, 
especially  as  to  the  first;  and  that  was,  by  wliat  rulesof  law, 
biddings  by  sealed  ])r()posaIs  sliould  be  govei-ned;  that  was 
the  more  remarkable  since  vast  interests  have  in  later  times 
been  involved  in  that  class  of  bidding  by  which  public  and 
pi'ivate  contracts  are  made  for  the  execution  of  jjublic  and 
private  works,  c.nd  the  ])urchase  and  sale  of  jjrojierties,  both 
])ub]ic  and  ])rivate.  I  say  that  wo  tiiought  it  i-eniarkabh- 
that  no  question  should  ever  have  been  raised  in  the  coui'ts  as 
to  what  rules  shall  govei'n  this  class  of  transactions,an(l  what 
was  necessary  to  constitute  a  legal  bid  by  sealed  proposals, 
while  the  books  arc  full  of  rules  govei-ning  sales  by  oj)eii 
bidding  at  i)ul)lic  auctions. 

In  this  case  the  complainants  bid  S21.100.  Root  iV:  Co. 
s.50(i  more  than  any  bid  made  for  the  property,  while  Ash 
tV:  Diller  bid  8<>01  over  and  above  the  highest  bid  for  tlu^ 
property.  Tlio  governor  tacked  Koot  ct  Co.'s  $r)0()  bid  ui)on 
the  specific  bid  of  the  com])lainants,  and  then  njum  tliat  he 
tacked  the  bid  of  Ash  ik  Diller  of  >^»;ol,  makino-  a  total 
of  s*22.-2ol,  and  for  that  sum  awarded  thei)urcliaseto  Ash  A; 
Dillei',  to  whom  he  execnted  the  deed,  and  1  was  instructed 
to  write  an  ojnnion  holding  that  the  specific  bid  of  tlie  com- 
plainants was  the  highest  legal  l)id  nnule  for  the  property, 
and  that  the  other  two  bids  were  illegal  and  void. 

No  cases  were  found  bearing  at  all  upon  the  question, 
except  that  of  Williams  v.  Stewart,  3d  Merrivale,  471,  when 
Lord  Eldon  in  a  mere  dictum  said,  that  bids  something  lik<' 
these  were  accepted  in  the  north  of  England,  where  they 
are  called  eaiullesticl-hiddiny^  I  suppose  because  the  written 
proposals  were  placed  under  candlesticks  standing  on  the 


Ml 
m 


•■■!■ 


if 


108 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


tal)lo  bofure  tho  cuiiiiiiissioiicrs  receiving  tiiem,  until  ail 
were  in.  , 

As  this  was  tlie  only  case  found  wliich  luid  the  least  re- 
semblance; to  the  one  i)el'oi'e  us,  I  was  re(|uire(l  to  discuss  it 
and  decide  it  on  <i'enei'al  ])rinci{>les,  whicii  1  did  as  well  as  I 
could,  AVe  held,  that  sales  by  seale<l  proposals  were  but 
another  niod(,'  of  sales  by  auction,  and  that  the  same  mode 
of  lair  dealing  and  justice  is  ivipiii-ed  to  govern  their  con- 
tluct  as  is  recjuired  in  the  conduct  of  auction  sides  whci'C! 
the  bids  are  ojien  and  pubh'c;  and  to  secure  this,  the  rules 
for  rcceivin<^  the  bids  in  the  latter  must  be  exactly  reverse<l 
in  the  fonner.  Where  open  bids  are  received,  excry  bidder 
has  a  right  to  know  what  other  bids  ixw)  made  against  him, 
so  that  he  nuiy  govern  his  bid,  if  he  chooses,  by  the  judg- 
ments of  the  other  bidders;  and  for  the  seller  to  receive  a 
secret  bid,  or  one  not  known  to  the  other  bidders,  is  a  fraud 
upon  them,  for  which  the  law  will  afford  an  adeciuate 
remedy;  whei'cas  at  auctions  by  sealed  i)roposals  the  policy 
is  that  each  bidder  shall  act  ui)on  his  own  judgment,  or  at 
least  independently  of  the  judgnuMits  of  any  other  biddei', 
and  if  the  seller  should,  before  the  bidding  is  closed,  make 
known  the  bid  of  one  bidder  to  another,  that  woukl  l)e  a 
fraud  upon  the  bidder  Avhose  offer  was  disclosed.  Upon 
these  i)rinci[)les  the  bids  of  Tioot  &  Co.,  and  of  Ash  ik 
Diller,  which  were  based  upon  the  judgments  of  specific 
bidders,  were  a  fraud  in  law  upon  the  specific  bidders  and 
void;  and  that  as  the  com])lainants  were  the  highest  specific, 
res])onsil)le  bidders,  they  were  entitled  to  tho  property  at 
their  bid,  and  that  Ash  &  Diller,  Avho  had  been  invested 
with  the  legal  title,  might  be  compelled  to  convey  it  to 
them  upon  their  performance  of  the  conditions  of  their  bid. 

I  understand  that  since  that  time  the  practice  has  grown 
up  and  become  quite  general  that  notices  for  secret  bids 
have  reserved  the  right  to  accejit  or  reject  any  bids.  It 
seems  to  me  that  the  reservation  of  this  right  in  inviting 
bids  may  present  questions  which  the  judiciary  will  l>e 
called  upon  to  decide.     How  far  this  is  consistent  with  that 


THE  CONFEIJENCE  KOOM. 


ID!) 


rule  of  fairnoss  and  integi-ity  wliidi  should  n-ov(>rn  all  aiu-- 
tiou  sales,  may  ui)cn  a  iield  i'oi-  discussion  wlnCli  will  admit 
of  a  protty  broad  rango,  and  may  at  some  time  invite  serious 
•  •onsideration,  where  statutes  do  not  intei'vene  to  sanction  it. 
It  seems  to  me  that  it  hardly  comports  with  that  fairness 
reciprocal  ri<>hts  and  oMi,i>ations  would  seem  to  reipiire,  if 
the])arallel  which  is  laid  down  in  this  c;ise  between  open 
and  secret  auctions  is  to  be  maintained.  If  in  open  auctions 
the  ri^ht  were  claimed  to  accept  or  reject  all  bids  made,  it 
would  be  an  anomaly,  at  l(>ast;  and  how  la i- it  would  be 
sanctiomMl  by  the  courts,  is  still,  I  apprehend,  undecided. 
It  seems  to  me  it  would  be  but  a  mockery  of  fairness  and 
ecjuality  of  rights,  and  why  is  it  less  so  in  case  of  secivt 
auctions  ? 

In  open  auctions  the  seller  has  an  undoubted  rio-ht  to  fix 
an  upset  price,  below  Avhich  bids  will  not  b<^  receTved;  but 
he  can  not  reserve  the  ri<.-ht  to  reject  any  bids  above' that 
in-ice,  and  the  same  right  should  undoubtedly  be  allowcMJ 
the  seller  in  secret  auctions;  but  why  he  should  be  allowed 
to  reserve  other  rights  not  allowed  in  cases  of  open  auctions 
I  do  not  clearly  compreheml.  In  either  case  unlawful  coin- 
])inations  may  bo  formed  to  defeat  that  fair  competition  be- 
tween the  bidders  which  justice  requires;  but  these  combi- 
nations are  unlawful  and  will  be  relieved  against  by  the 
courts. 

One  other  important  question  was  decided  in  this  case, 
^v\nc\l  has  already  been  referred  to  in  a  former  numl>er  of 
this  series.  In  the  cases  of  Doyle  v.  Teas,  4  .Scam.  4:>7,  Ijc 
AVolf  V.  Long,  G  Gilm.  6T9,  and  Wright  v.  McXcely,  11  111. 
241,  in  all  of  which  cases  I  wrote  the  opinions,  it  was  statcMl 
that  where  a  bill  is  filed  for  the  specific  performance  of  a 
contract,  the  purchase  money  must  be  tendered,  and  tlie 
tender  kept  good  by  bringing  the  money  into  court  and 
depositing  it  with  the  clerk,  antl  held  subject  to  the  order  of 
the  court.  In  neither  of  these  cases  was  a  decision  of  that 
point  necessary  in  determining  the  case,  although  in  each 
the  question  was  presented  and  argued;  but  its  decision  not 


1 1 


m, 


i 


i 


f 


200 


EAKL\'  BP:N(iI   AND  BAR  OF  ILLINOIS. 


I>!'in^^iihsolutoly  nocessiirv  for  the  (Irtt-niiinntion  of  the  cjisc, 
what  was  said  iijx)!!  tlic  subject  was  not  inatuivly  coiisi^lcrrd. 
Ill  this  case,  howcvei",  it  was  s(|iiai'('ly  i)ros('ntc(l  and  must 
be  met;  W(^  wvw  asK'cd  to  rccoJisidcr  the  subject,  and  we 
did  so.  and  all  the  eases  at  hand  bearin-^-  upon  it  w«'re  ean*- 
i'lillv  examined.  Manv  eases  were  found  in  which  lan<:ua<r<' 
was  used  as  stronn'  as  I  had  used  in  tlie  cases  referred  to. 
holdin<^'  that  a  ten<ler  must  l»e  made  and  lvci)t  ^ood  by  i>rin<r- 
in;^'  the  mon<\v  into  court,  yet  in  not  one  of  thorn  was  that 
ruh;  enforced,  and  in  some  of  them  decrees  were  entered 
dii'ectly  in  violation  of  it;  in  not  one  of  the  cases  exam- 
ined was  a  contrary  rule  laid  down  in  words,  and  yet,  in  a 
•i'l'cat  iiKUiy,  decrees  were  entered  whei-e  tenders  lia<l  iu)t 
been  brought  into  court,  and  in  several  of  them  whei'e  no 
tender  at  all  had  been  made;  in  some  of  them  further  time 
had  been  ^iven  after  tlie  hearing  for  the  payment  of  the 
purchase  money. 

The  case  of  Washburn  v.  Dewey,  17  ^'er.  '.•2,  was  tlie  oidy 
case  found  where  the  question  of  brin<4in^-  the  money  which 
had  lu'en  tendered,  int() court,  was  s(juarely  decided  in  terms, 
and  there  it  Avas  held  that  a  sutKcient  excuse  was  shown 
for  not  having  done  so. 

\j\nn\  what  we  conceived  to  be  abundant  authority.  I 
cheerfully  took  back  what  I  had  said  in  the  ])i'evious  cases, 
an<l  lield  that  in  this  case  it  was  not  necessary  to  have 
brought  the  tender  into  court. 

The  rule  undoubtedly  is,  that  all  of  this  (|Ucstion  of  ten- 
<ler,  and  of  keeping  the  tender  good  by  bringing  the  money 
into  court,  is  a  nuitter  of  discretion  with  the  chancellor. 

Let  it  be  remembered  that  matters  of  discretion  are 
alw.'iys  subject  to  review  in  the  court  of  chancery. 

The  only  other  case  to  which  I  shall  refer  is  that  r>f 
Shackleford  and  wife  v.  Hall,  21  111.  212.*  In  this  a  ques- 
tion was  presented  which  had  never  before  been  considered 
in  this  country,  and  very  rarely  in  England. 

*A  biul  mistake  w.u,  made  by  the  reporter  in  tliis  case;  the  position 
occupied  by  tlic  several  piu'ties  ia  misplaced. 


r 


Hi 


THH  CUNi'KUEXCK  liOO.M. 


201 


'•  Tlio  facts  of  tlic  case'  show  that  all  of  the  (h'visccs  (»!'  the 
estate  ill  I'eiiiaiiKh'r,  now  in  coiitrovci'sv,  were  tht;  hcii-s  at 
hiw  of  the  testator,  and  as  siu-li  heirs  at  hiw  had  an  expecta- 
tion of  the  estate.     In  the  ahsence  of  the  will  each  w«>nld 
have  heen  entitled  to  his  oc  her  res|M'ctive  portions  (»f  it  ac- 
conlin;^'  to  our  statute  of  <lescent.'*     The  testator  haviniide- 
vised  the  estate  in  his  will  precisely  as  the  statute  would 
have  cast  it  in  the  absence  of  a  will,  imposed  thesuhsecpient 
condition  that  if  either  of  his  children  should  niarrv  before 
ai    ;ining  the  a«i«?  of  twenty-one  years,  he  or  she  shouhl  for- 
feit the  estate  thus  l)e(pieathed,     Mrs.  Shackleford  did  not 
choose  to  wait  until  she  was  twenty-oiu'  yeai's  old.  and  so 
was  married   l)(>fore   that  time.     Her   I»r(»ther,    Ilenrv    II. 
Hall,  then  liled  a  bill  to  declare  the  forfeiturt',  which,  upon 
hearing-  in  the  Circuit  Court,  was  dismissmhand  theiiee  was 
brou<.;ht  to  the  Supreme  Court.     I'jjon  the  ar^iunents  loi- 
the  complainant,  the  plaintitf  in  error,  the  violation  of  the 
coialition  subsccjuent  was  relied  upon,  and  really  that  was 
ai>out  all  he  had  to  say  in  the  <«j)enin<^'.     For  the  defense  it 
was  claimed  that  tliecouilition  was  in  resti'aint  of  nuirria<>e 
and  therefore  void;  but  to  this  a  conclusive  answer  was 
^•iven  that  a  reasonable  restraint  was  not  only  ])rop(M'  but 
commendable,  and  that  a  restraint  to  the  a«i'e  of  twentv-one 
years,  or  even  a  gi-eater  age,  was  not   unreasonable,  and 
upon  this  the  case  was  submitted.     So  soon  as  we  reached 
the   conference   room  with  the    record,   Hi'eese  broke  out 
an<l  said :     "That  brotlier  is  a  mean  fellow;  yes,  lu^s  a  gi-eat 
rascal,  and  we  must  beat  him  if  possible.     Now,  Caton,  liow 
can  it  be  doneT'     I  re|)lied  that  the  lasv  referred  to  on  the 
ar<^unient  was  certainly  all  in  his  favor,  and   I  didn't  re- 
nienil)ei'  any  law  to  controvert  that,  and  Judge  Walker  was 
e(piaily  at  a  loss  to  find  any  way  to  get  around  it.     I  then 
stated  that  during  the  argument  thv  le  seemed  to  be,  as  if  it 
were  floating  in  the  atinos])here,  some  intangible,  undefined 
idea  that   I  had    seen    something   somewhere,  some  idea, 
derived  from  something  I  had  read  some  time,  ])robablv 
when  I  was  a  student,  when  reading  some  text  book,  that 


ilil 


202 


EAULY  IIKNCII  AND  HAIt  OF  Il-I-INOIS. 


^  ki 


iiii^ilit  li;i\7'  soiiH'  hciiriii;;'  on  tlu?  vnnr,  l»iit  .wliat  it  v  is  \ 
cniilil  not  siiy.  It  was  but  a  vayuc,  iiMlcliiiite  iiii|)i'«'ssiun. 
Mild  scciikmI  I'atlioj'  like  a  llcctin;;'  tlrcaiii  than  a  tangible 
idea;  that  J  IVIt  conCKh'Mt  that  I  had  never  seen  a  (,'as(!  Ironi 
which  that  th(>ii<^'lit  had  arisen,  and  that  I  I'elt  no  assurance 
that  there  was  any  principk^  hiid  down  in  the  hooks,  in  any 
way  ((ualiryine'  the  ch'cisions  which  seemed  to  he  so«lirocf'<' 
in  point,  hohling-  that  this  condition  suhse<|uent  was  va 

Jirooso  then  ])icke(l  up  the  record  from  my  desk,  phiced 
it  in  my  Jiands  an<l  said:  "  Vou  take  tliis  record  and 
han<;"  on  to  the  tail  of  that  i(h'a  till  you  follow  it  up  to  its 
head,  until  you  lindsonu*  law  to  heat  this  unnatural  rascal, 
who  would  cheat  his  sister  out  of  her  iidu'i'itanco  just  be- 
cause she  wanted  to  <^'et  married  a  iew  months  before  the 
time  fixed  by  the  old  man." 

1  took  the  record  home  with  me,  and  after  I  liad  linished 
writin<4'  o))inions  in  all  my  (jther  cases  I  took  up  this.  1  ex- 
amined carefully  all  the  J)i«''ests  in  the  librai'V,  and  Avent 
through  the  Kn<ilisli  I'eports.  1  souj^'ht  tho)'ou«4'hly,  without 
Jindin^i'asinele  word  bearing'  in  any  way  U|)ou  the  case,  st' 
believin"'  that  there  was  somethin<>'  somewhere  that  wo 
throw  some  lig'lit  u])on  it  on  one  side  or  the  other.  I  tooiv 
down  Jarman  on  Wills,  and  went  home  determined  to  read 
every  text  book  in  the  library  on  that  subject  bef<jre  [ 
svoukl  give  up  the  seardi,  and  commenced  reading  at  the 
very  beginning,  and  then  j)roceeded  very  deliberately  ]>aee  by 
page  until  I  had  got,  perhaps,  two-thirds  of  the  way  through 
the  book,  when  I  read  a  short  ])aragrapli  which  did  not  at  first 
attract  my  attention  particularly,  and  I  passed  on;  but  before 
I  had  finished  the  next  paragraph  the  previous  one  began  to 
inq*!  ess  itself  upon  me,  and  I  looked  back  and  read  it  again, 
and  the  more  I  studied  it  the  more  I  thought  it  contained 
something  to  the  ])urpose.  It  referred  to  several  old  En? 
glish  oases,  the  reference  to  which  I  took  down,  and  made 
my  way  to  the  library  as  soon  as  possible,  impatient  to  see 
Avhat  these  references  would  develop.  In  less  than  an  hour 
I  found  the  law  to  be  as  well  settled  as  anv  other  well  rec- 


TIIK  CONKKIUONCI.:  UOOM, 


liu:i 


oMiiizcd  |)nii('i|)lc  of  liiw.  that  wliciv  ji  tcstntor  devises  ar; 
cstjitc  to  his  licir  iiccoiiipiiMicd  witli  ji  coiHlitioii  <.|  lurlcit- 
iiiv.  ji  liivacii  (»f  tliiit  coiiditioM  sIimII  lu.l  u(»i'k  tlir  rt.fi'cif- 
iiiv,  unless  its  cxistciicc  is  hroiinlit  limiie  to  the  kiiowh'd;^*" 
of  the  iieii',  iind  this  nde  ii|)|ih'es  as  well  to  eonveyaiu'es  In- 
deed as  l.y  devieo.  I  still  think  it  a  little  ivniai'kahle  that 
these  eases,  althoiinh  lew  and  most  of  them  verv  old,  jiiv 
iH.t  found  referred  to  in  any  of  the  Dincsts  which  I  have 
eonsulled,  and  that  no  such  ease  appears  ever  to  have  arisen 
in  any  of  the  eotii-ts  of  the  I'nited  States,  or  in  later  times 
in  Kn.ul-id,  and  it  is  prol.ahh^  that  to-day  this  case  stunds 
alone  ill  ilie  Anu'rican  reports. 

When  I  i-ead  my  opinion  at  the  next  conferenc  •  .ludne 
IJreese  es])ecially  manifested  o-ivut  satisfaction  at  the  result 
of  my  investigations,  and  walked  across  the  room  and 
patted  mu  on  tin;  hack,  sayinn-,  ••  Well  dune,  my  <;(.od  hoy," 
ami  seemed  not  k-ss  pleased  at  tim  strictures  I  had  ex- 
jn-essed  in  the  latter  part  of  the  oi»ini(.n  upon  the  (•(•ndncr 
of  the  har<[-heartod  hrotlior,  as  lio  turmod  him,  ami  iu  this 
expression  we  all  concurred. 


I 


m 


IX. 


REPORTERS  OF  THE  SUPREME  COURT. 


SAI.AKIES — LAUOKS — I'EKSONAL    MENTION. 


T  should  not  close  these  sketches  of  the  bench  and  bar  of 
Illinois  without  referring  to  the  re})orters  by  whose  labors 
the  decisions  of  the  Supreme  Court  of  this  State  have  been 
])ut  in  proper  form  and  laid  before  the  ])rofession,  not  only 
in  our  own  State,  but  throughout  the  Union.  To  their 
ability  and  their  industry  we  are  all  dee])ly  indebced  for 
the  fidelity  with  which  they  have  })erformed  their  tasks,  and 
they  certainly  deserve  a  recognition  from  those  Avhose  labors 
they  luive  recorded  as  well  as  from  those  who  have  profited 
by  their  industry. 

AVhen  I  Jirst  cast  my  lot  With  the  profession  in  this  State, 
lireese's  lieports  alone  had  been  ])laced  before  the  ])ublic. 
It  was  a  small  v<^lume  and  contained  the  decisions  from  the 
organization  of  the  Suju'eme  Court  in  ISIS),  up  to  the  close 
of  the  December  term  of  that  court  in  1S31. 

Necessarily  the  relations  existing  between  the  reporters 
and  the  bench  were  of  the  most  intimate  and  confidential 
character.  They  occui>ied  desks  in  the  conference  room 
and  were  ]iresent  at  the  deliberations  there  conducted, 
and  sometimes  assisted  the  judges  in  reading  arguments, 
al)stracts  or  briefs.  The  propriety,  and  sometimes  even  the 
necessity,  of  this  is  manifest  when  we  appreciate  they  were 
thus  enabled  to  understand  more  fully  the  scope  of  the 
arguments  adduced  by  the  diiferent  judges  in  their  delibera- 
tions upon  each  case,  by  which  they  were  led  to  the  decisions 

(204) 


.7eN 


REPORTERS  OF  THE  SUPREME  COURT. 


205 


announced  in  the  formal  opinions  which  they  had  to  repoi-t, 
and  they  were  bound  l)y  the  same  ohiioations  of  secrecy 
which  rested  upon  the  ju(l<res, 

Sydney  Jireese  was  a  younoman  tlien,  but  he  was  a  goo«l 
lawj^er  and  had  already  attained  a  hioh  position  at  the  bar. 
His  sul)sequent  career  as  jurist,  while  he  occupied  a  seat 
on  the  supreme  bench  of  his  adopted  State  for  twenty-two 
years,  having  served  six  years  of  the  meantime  in  the  United 
States  Senate,  well  maintained  the  reputation  which  he  had 
so  early  acquired.  This  reputation  grew  with  his  years  of 
experience  and  industry,  until  he  finally  closed  his  caiver 
by  death  in  1878,  while  he  was  still  a  member  of  tliat  court, 
of  which  he  had  been  one  of  the  brigiitest  ornaments.  Ilis 
fame  will  be  perpetuated  so  Umg  as  integrity,  ability  and 
industry  shall  be  appreciated. 

After  Breese's  reports  were  closed,  the  decisions  of  <»ur 
Supreme  Court  remained  quietly  in  their  archives  until 
183J).  when  Jonathan  Young  Scammon  Avas  appointed  t<> 
that  court,  and  he  continued  as  oiticial  reporter  until  after 
I  came  upon  the  bench.  Tiie  first  volume  of  Scamnum's 
Reports  was  piddished  in  1843,  and  the  third  and  fourth 
volumes  brought  the  decisions  uj)  to  the  close  of  the  De- 
cember term,  1843.  Scammon  was  an  able  lawy(n-  with 
a  Avell  disciplined  mind,  who  clearly  comprehended  and 
plainly  and  succinctly  stated  the  points  decided  in  the  case. 
The  syllabi  of  his  cases  are  models  of  perspicuity  and  brevitv. 

Upon  the  resignation  of  Mr.  Scammon,  Chas.  Oilman  wiis 
a])pointed  reporter  to  the  court.  He  continued  to  hold  that 
office  until  the  time  of  his  death,  in  July,  184!).  lie  i)ul  iished 
five  volumes  of  reports,  entitled  Gilnuin's  Reports,  t^  .  first 
four  of  w^hich  contained  the  decisions  of  the  court  of  nine 
judges  from  Scammon's  time  up  to  the  time  when  that  court 
was  legislated  out  of  office  by  the  Constitution  of  1 84s. 
His  fifth  volume  contains  the  decisions  of  the  new  court  of 
three  judges  during  the  first  year  of  their  term  of  ofiice, 
that  is  to  say,  from  the  Decendjer  term,  1848,  to  the  June 
term,  1840,  both  inclusive.    Mr.  Gilman  was  an  excellent 


'W. 


di 


1 

^ 

i  i:!i 

I  i 

1  : 

iii 

H 


20G 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


hnvvor,  a  man  of  threat  industry,  and  conscientious  in  tlio 
discliju'go  i)f  tlie  duties  of  his  ollice.  He,  like  his  ])i'ede- 
cessors,  did  the  work  himself  of  preparing  the  ojnnions  for 
the  press,  reading  the  proofs,  and  superintending  the  publi- 
cation of  his  work.  This  woi'k  u})on  the  fifth  volume  was 
not  completed  at  the  time  of  his  death.  It  contains  the  first 
year's  work  of  the  three  judges,  consisting  of  008  pages,  and 
contains  the  decisi(ms  of  ninety-eight  cases. 

r])on  the  death  of  Mr.  Oilman,  Ebenezer  Peck  was  n]> 
pointed  reporter,  at  the  December  term,  1849,  and  he  hekl 
that  olficc  and  discharged  his  duties  for  a  period  of  fourteen 
years  or  till  the  January  term  in  1803,  when  he  resigned  the 
office  of  reporter,  to  accept  the  ofiice  of  judge  of  the  Court  of 
Claims,  at  Washington,  to  which  he  liad  been  appointed  by 
]\[r.  Lincoln.  IJuring  these  years  Judge  Peck  issued  eight- 
«M»n  volumes  of  the  reports.  He  abandoned  the  practice, 
which  had  hitherto  been  observed,  of  calling  the  reports 
after  the  names  of  the  rejiorters,  and  so  entitled  his  first 
volume,  Illinois  Keports,  Volume  XI,  ten  volumes  of  the 
Supreme  Court  of  Illinois  having  been  previousl}'  issued; 
,Iudo:e  Peck's  last  volume  beini"- 30th  111.  These  volumes 
testify  to  the  cfipacity,  industry  and  fidelity  of  the  re})orter. 

For  several  winters  the  rejiorter  and  myself  occu[)ied  the 
same  room  and  did  our  work  at  night  side  by  side,  and 
thus  I  WIS  enabled  to  observe  his  mode  of  prejiaring  the 
cases  for  the  printer,  the  systematic  order  in  Avhich  his 
Avork  was  done,  and  the  industry  and  zeal  which  he  devoted 
to  the  discharge  of  his  official  duties. 

All  of  this  is  manifest  to  any  one  who  will  carefully  ex- 
amine these  reports. 

After  the  resignation  of  Judge  I'eck,  Xorman  L.  Freeman 
was  appointed  reporter  at  the  April  term,  1j>03,  and  he  has 
lilled  that  office  with  great  acceptal)ility  up  to  the  present 
time,  and  it  ma}'  be  earnestly  hoped  that  he  will  be  able  to 
do  so  for  many  years  to  come. 

My  first  decisions  are  to  be  found  in  the  third  volume  of 
Scaminon,  and  my  last  in  the  33d  of  the  Illinois  Reports,  so 


' ' 


■fe. 


FHKNi;ZKR    PKCK. 


iii'; 


i     • 


i 


\. 


lir- 


■•, ' 


NORMAX    L.    FKKKMAN. 


1 


I 


,»  1 


4  ; 

'   '  i 


REPOin-EIlS  OF  THE  SUPKEME  COrUT. 


207 


it  will  1)0  soon  tliat  T  lidpod  to  make  np  tlio  doeisions  coii- 
taiiiod  in  thirty  vohinios  dunn<r  tlio  twenty-two  yoars  f  was 
on  tlio  supronio  l)oncii,and  it  is  with  <vivut  satisttiction  that 
I  can  say  that  all  of  tho  roi)ortors.  oxocptin<r  I'rooso.  havo 
hold  oHico  and  dischai'<>od  thoir  dutiosc hiring  the  time  when 
1  was  on  tho  honch. 

]\Ir.  Frooman  had  practiced  hol'ore  our  court  for  a  nnni- 
l»or  of  years  l)ol ore  ho  was  appointed  its  reporter,  and  avo 
were  all  familiar  with  his  eminent  litness  as  a  lawyer  for 
that   place,   but   his   other   qualifications   ronuuned  to    hv 
])roved;  and  in   these  ho  has  fai-  surpassed  tho  most  san- 
guine expectations  of  the  court,  tho  pi'ofession,  and  his  per- 
sonal friends.     The  exporionco  which  ho  has  had  has  yoar 
by  year  shown  an  im])rovement  in  his  work.     He  has  not 
been  content  to  keep  up  tho   standard  of  the  work  Avhich 
existed  at  the  time  of  his  acce])tance  of  olHce,  but  the  im- 
])rovement  which  is  manifested  in  almost  every  succeeding- 
volume,  shows  that  his  ambition  to  excel  has  not  diniir" 
ished;  that  his  ca])acity  to   imimjve   has  grown   with   his 
oiiportunitios;  that  his    ability  for  labor,  and  his  untii-ijig 
zeal  for    improvement   have   never  diminished   from   the 
very  beginning.     He  has  lately  issued  the  one  hundred  and 
seventh  volume  of  his  own  reports,  and  this  imi)liesan  amount 
of  labor  which  few  men  living  could  havo  ])erformed  and  i)er- 
formcd  it  well.     AVe  may  know  that  from  the  amount  of 
Avork   acccmi)lighcd,  he  must  have  em]i]oyed  nianv  a.'sist- 
ants,  and  from  tho  character  of  the  Avork  done,  that  these 
assistants  must  have  been  able  men;  yet  tho  Avholo  boai's 
the  impress  of  his  personal  supervision,  not  alone  of  one 
department,  but  of  all  departments  alike. 

Probably  no  reporter  living  has  had  the  experience  or 
])erformed  tho  labor  involved  in  the  production  of  these 
hundred  volumes,  and  I  hesitate  not  to  say  that  ho  stands 
at  the  very  head  of  the  legal  reportorial  profession. 


X. 


THE  FRAILTY  OF  HUMAN  MEMORY. 


riCKSOXAT.    IXriDENT. 


T  liavo  ofton  boon  im])rosso(l,  not  t<»  say  alarmod,  with 
my  ohsorvations  (lonu)nsti'atin«f  tlio  t'lailty  of  liinnan  luoni- 
ory.  Wlion  we  ronioniboi*  how  iniu-h  of  our  ri<,»'hts,  our 
lihortios  and  our  lives  depend  ujmui  human  testimony. 
founcU'd  ujMin  human  memory,  we  may  well  feel  alai'med 
when  we  see  how  frail  our  memories  are.  Layin<rasid<'  the 
want  of  into<^rity  and  intentional  falsehood,  which,  of  them- 
selves, may  W(>]1  cause  us  to  fear  that  the  truth  may  l)e  ])er- 
verted  or  denied,  much  more  danf!:er  is  to  be  ai)i»rehende(| 
from  misrecollection  or  erroneous  observation  of  occurrin<;- 
events,  Jis  they  transpire.  In  tlio  ascertainment  of  truth, 
much  more  is  to  be  feared  from  the  Inquest  witness  than 
from  the  corrupt  perjurer.  The  falsehood  of  the  latter  is 
much  more  easily  detected  than  the  mistakes  of  the  fornuM-. 
1  mii^ht  write  a  volume  givin<^  my  observations  on  thissuii- 
ject,  and  yet  leave  much  untold;  still  I  should  repeat  much 
that  mi<^ht  be  paralleled  by  the  observations  of  others. 

Let  me  relate  one  instance  of  many,  in  my  own  experience, 
showin^^  how  unreliable  is  our  recollection  of  past  events. 

In  the  pprin*^  of  1835  three  of  us,  then  yountj^  men, 
planned  a  horseback  excursion  with  three  young  ladies  of 
riiicairo.  The  late  C.  13.  Dodson  with  Miss  Sherman,  now 
Mrs.  Thomas  Church ;  Horace  Chamberlin,  who  not  lony; 
after  lost  his  life  in  the  Texas  revolution,  and  Miss  Rose 
1  lathe  way,  many  years  since  deceased,  who  was  a  sister  of 

(2oy) 


THE  FRAIT.TY  OF  HUMAN  MKMoRY, 


205  > 


tlic  Into  Afrs.  Jolin  f'iillioim.  (tf  Cliiciiu'o.  iind  invscit'  with 
Miss  Ajrncs  Spcnoo.  constituted  tlic  piii-ty.  All  were  ^cmmI 
riders,  jiiid  iill  tlie  lioi'ses  selected  were  spii'ited  and  lively. 
The  tri|)  laid  «uit  was  to  ^'o  down  to  the  ( "alimiet  river, 
twelve^  miles  <lislaiit,  wlu're  we  would  take  lunch,  and  then 
return  to  the  city.  The  way  le(l  us  alonu"  the  road  south 
I'our  miles  to  the  oak  woods,  theiu-e  thi'ouyii  timher  all  the 
way  to  Hale's  tavern,  situated  on  th(>  batiks  of  the  Calumet, 
at  the  ('rossin<i:  of  that  stream.  The  road  was  citnsidei'aldy 
trav('l(Ml,  hut  throu<;h  the  timliei'  was  conlined  to  a  sinule 
wa<^on  track,  which  wound  aloni;'  tln'oniih  the  trees,  some- 
times close  to  the  shore  of  the  lake,  at  others  a  short  distance 
from  it,  accordin*^'  as  the  nature  of  the  foi-est  or  the  i:round 
permitted.  The  first  four  miles  were  ovei'  the  usual  I'ace 
course,  whore  those  who  had  fast  horses  were  in  the  fro- 
(|Uont  habit  of  tryinu' conclusions,  and  as  soon  as  we  stiMick 
this  race  course  Miss  Spenci''s  horse  showed  that  it  was 
familiar  <rround  to  him,  and  he  plun;4ed  ah(>ad  in  a  way  that 
showed  that  he  thouuht  it  his  duty  to  win  another  I'ace 
there.  I  soon  caui^ht  his  rein  and  i)rou;nht  him  down, 
while  ti'O  lady  ])rotested  I  sliould  le:iv(»  it  all  to  her,  that 
she  could  ni..na<^(^  him,  and  would  give  him  as  longa  run  as 
he  wanted;  but  to  this  I  would  not  consent.  Her  widowed 
mother  had  allowed  her  to  comi'  with  nu^  V(M'y  reluctantly, 
fearing  that  some  accident  might  befall  lu'r.  an<l  it  was  only 
upon  my  rej)oated  assurance^  that  I  would  take  the  greatest 
])ossiblo  care  of  her  and  would  be  absolutely  responsible  foi- 
her  safety,  that  she  had  cons(Mited.  'J'his  incident  no  doubt 
prompted  me  to  greater  caution  than  1  might  othei-wise 
have  exercised,  so  I  took  a  ch(>ck  rein,  attached  t(»  the  bit 
of  her  horse,  and  carried  it  in  my  hand  all  the  way.  vShc 
chafed  at  this  almost  as  much  as  tlM»  horse  did,  and  she  soon 
convinced  mo  that  she  was  a  supfM'ior  ridei*.  and  could  man- 
age the  liorse  with  skill;  but  I  knew  if  he  should  take  it  into 
his  head  to  run  away  in  the  forest,  which  we  were  approach- 
ing, she  would  be  powerless  to  manage  him,  so  I  persist- 
14 


210 


I'.MU.Y  HKNCH  AND  IJAIi  OK  IIJJNOl.S. 


«'Mtly  Im'M  till' clu'clv  rein.  We  had  our  little  diislics  all 
tlio  same,  aiMJ  rat'li  cxiiilaiatiii/i'  run  served  to  elevate  oiii 
spii'its  aii<l  made  us  roi'«4<'t  oui'  prudent  resolutions. 

I''iuall_v  Dodsod  [H'oposed  a  race  l»et\veeu  oui'  ladies,  which 
was  promptly  accepted  upon  the  condition  that  li(>  should 
ride  ahi'east  with  his  lady,  while  thecheck-rein  compelled  uie 
to  do  the  same  with  min«'.  The  roadway  was  nai'row.  hut  I'or 
half  a  mile  ahead  was  straij^ht  and  the  timber  open,  and  so 
we  all  dashed  alM>a<l  at  top  s|)eed,  and  the  ludf  mih;  of 
strai^i'ht  i-oad  was  (piickly  c«»vered.  We  then  took  a  tni-u 
t()  the  left,  so  that  we  could  not  si'e  the  I'oad  hefi  •■(«  us  until 
we  reached  the  turn.  I  was  on  theextrenu'  ri;.5ht  with  Miss 
S|M'nc(»  on  my  left,  an*!  next  to  her  was  Miss  Sherman,  with 
Dodson  on  tlu^  exti'emo  left,  'i'his  <iave  the  ladies  tlu^  mid- 
dl(!  of  the  t>'ack,  while  we  were  on  the  outer  sides.  When 
Avn  turned  a  bend  in  the  road  at  full  speed  I  Avas  ai>palied. 
A  lar<4'e  oak  tree  stood  on  the  left  hand  side  near  tin;  road, 
fi'om  which  a  lar^'c  limb  projected  out  ovei"  the  road.  Near 
the  trunk  it  was  hi^^h  enou<.;h  to  allow  a  hoi'seman  to  ])ass 
under  it.  but  further  on  it  bent  down,  so  that  1  saw  it  must 
inevitably  sw(H'p  my  lady  from  the  saddle,  while  I,  bychanu- 
ini;-  my  ])ositi(t!i  a  little,  could  escape  it,  I  i)ulled  u[)  i>oth 
of  our  horses  with  such  force  as  to  throw  thciii  on  their 
haunches,  an<l  told  her  to  throw  hei'self  back  intendin<i'  to 
catch  her  on  my  left  arm,  but  when  I  extended  my  arm  for 
this  purpose  I  found  that  it  was  resti'ained  by  my  i'idin<^'  whip 
which  I  held  in  my  hand  lo<)ped  ai'ound  the  left  arm.  The 
conse(|uence  was  that  she  fell  backward  to  the  ,i>round  right 
between  the  horses,  at  the  vor\'  instant  that  J  threw  them 
upon  their  haunches,  by  i)ullin'^"  them  up  with  all  my  might. 
Xo  <me  can  imagine  my  feelings  at  that  moment,  when  it 
seemed  certain  she  must  be  trampled  to  deatii.  ;iit  '  tlie 
])icture  came  up  before  me  of  carrying  h(M  up  led  corjtse 
back  to  her  widowe<l  mother  whom  we  I  l  so  short  a 

time  before.  As  soon  as  possible  I  turnei  .ound  to  see  i,.e 
result,  and  was  astonisluHl  to  see  that  she  hau  .1 1  rea<l  \  regained 
her  feet  and  was  shaking  the  dust  from  her  rii lug  habit 


il 


TIIH  l'l{Ali;rV  OK  IllMAN  MKMoUY 


•Jl 


Ibit 


(  )!'  ('(illl'sc  I  (lisillolintt'il  ;is  soul)  its  ]iossili]<>,  ;iii(l  I'illl  ll|)  to 
litT,  Itiit  wjis  so  |iiii'!i1_vz(mI  tliiit  I  could  liardly  iislx  licr  where 
she  was  hurt,  and  h'd  lier  to  a  lo^-  near  liv,  whei-e  she  sat 
down,  sayint;'  sh<'  Itelieved  she  was  iiof  hint  at  ad.  Ily  this 
time  the  rest  ol'  the  party  iiad  eonie  ii|)  and  an  examination 
was  instituted.  It  was  found  that  a  enri  or  hiel<  ol  hair 
near  Iilt  forehea<l  had  heen  cut  oil'  hy  a  cork  of  one  of  th<' 
hors(^-shoes,  which  had  stepped  upon  it.  as  it  dropped  upon  a 
stono  in  the  i'oa<l.  Still  the  sev<'red  hairs  were  hau'iinu'  in- 
tcrtwine(l  with  tho  others.  The  only  scratch  lound  was 
upon  one  of  the  anlcles,  whei-e  a  cork  had  cut  a  iiole  in  the 
stock itii^'-,  hut  hardly  discoioriny  the  skin,  atid  she  insisted 
that  the  jar  of  the  fall  had  not  hurt  her  in  the  least. 

Chainherlin  and  Miss  Ilatlioway  had  followed  alon^-  so 
as  to  keep  neai'  us.  and  they  described  the  scene  as  fairly 
apjtallin^'  when  they  saw  her  fall  head  first  between  the 
horses  at  tho  very  instant  they  were  so  violently  drawn  hack. 
That  was  an  «^scape  which  may  not  be  often  jiarallelcd,  and 
I  am  sure  that  I  felt  the  shock  lon^'er  than  the  lady  did,  for 
in  a  very  short  time  she  was  as  lively  as  evei*. 

Wo  soon  uiount(nl  and  pursued  our  journey  to  Hale's  tav- 
ern, whoro  wo  ^ot  our  huu*h  and  spent  an  hour  or  two  with 
about  as  much  joyous  jollity  as  six  youn<;-  ])eople  know  h<>w 
to  i'ais«».  AVo  then  returned  to  tho  city  witlntut  incident. 
There  was  no  more  runnin<^  of  hoi'ses  that  day. 

Many  y;':irs  later,  when  I  was  holdiny'theCii'cuit  Court  at 
(teneva.  Kano  county,  (hirini"' a  social  chat  with  Mr.  Dodson, 
1  incidiMitallv  uientioncd  that  it  occurred  when  we  were  ji-oiuii" 
out.  "  Xo,"  said  ho,  "It  took  place  whou  W(;  wore  return- 
in«j;."  I  insisted  that  it  occurred  while  we  woro  ^innfi;  out, 
and  referred  to  the  fact  that  I  ha<l  obseirvod  tho  lake  on  our 
left(hirini!'  tho  race,  whereas  if  it  had  occurred  on  our  retuiri 
tho  lake  would  have  been  on  our  ri<^ht.  Now,  there  are  IVw 
events  in  my  past  life  which  are  as  deeply  im|)ressed  on 
my  memory  as  this,  and  I  tool  absolutely  certain  that  I  am 
riirht  in  mv  recollection.  In«leed,  I  well  remond)er  that  the; 
whole  matter  was  discussed  when  we  stop[)ed  for  lunch;  but 


iji 


f 


I  • 

I  ■  i 

1' ; 


I 


s, 
1 


i 


If^ 


I  i 


u 


212 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


all  tlio  incidents  to  wliich  I  could  refer  in  confirmation  <;f 
my  I'ecoliection,  could  not  have  the  least  inlluence  in  the 
l)eliel  of  o^lr.  Dodson,  and  his  conviction  was  so  fixed  that 
r  have  not  tiie  least  doubt  he  would  have  sworn  to  it  with- 
out hesitation,  if  he  knew  that  his  own  life  dejiended  on 
the  truth  of  his  statenient;  and  my  helief  in  the  correctness 
of  my  recollection  of  tin:  event,  and  that  it  occurred  while 
we  Avere  ^oin<^  out,  is  eipially  stronf^-,  thou<,di  my  observa- 
tions liave  tjui^ht  me  to  distrust  my  own  memoiy  as  Avell  as 
that  of  others,  and  so  even  in  this  I  nuvy  have  been  wroni:': 
but  I  must  say  that  I  do  not  believe  it  is  so. 

We  finally  agreed  to  leave  it  to  the  ladies,  two  of  "whom 
Avere  still  in  Chicago,  and  he  })romised  tocill  u})on  them  the 
first  time  he  went  to  the  cit}',  and  get  their  recollection  of 
the  matter.  AVhen  I  met  him  again  some  time  later,  I  asked 
him  if  he  had  seen  the  ladies  and  what  thev  said  about  it. 
"  Yes,"  said  he,  "  I  have  seen  them,  but  I  very  socm  saw  that 
you  had  all  ctmspired  together  to  get  up  a  lie  and  make  a 
fool  of  me,  but  it  wcm't  work.  I  know  that  it  occuri'ed 
when  we  were  returning.'' 

Still  when  I  rememix-r  the  many  instances  when  I,  my- 
self, as  well  as  others,  who  have  entertained  as  strong  con- 
victions as  I  had,  and  still  have,  that  the  accident  hapjiened 
when  we  were  going  out.  have  been  mistaken,  an<l  it  lias 
been  conclusively  ])roved  tli-\t  we  wei-e  in  error,  I  am  con- 
strained to  admit  that  Mr.  Dodson  may  have  been  right 
in  his  recollection  of  the  occurrence. 

I  have  in  a  paper,  when  giving  an  account  of  the  trial  of 
liider  for  murder,  shown  ^  ')W  Mr,  Ilavenhill,  a  witness  for 
the  State,  had  been  mistiiken  in  his  previous  testimony,  when 
he  had  sworn  that  he  lia«l  seen  the  ]»risoner  thi-ough  a  cer- 
tain window  in  the  house,  and  nothing  short  of  his  own 
observation  of  the  fact  that  tliei'e  was  no  window  on  that 
side  of  the  house,  could  have  convinced  him  of  his  error. 
That  he  was  honest  in  his  jireviors  testimony,  he  has  dem- 
onstrated from  the  fact  that  he  hastened  with  all  speed  t<> 


i  <nl: 


THE  FRAILTY  OF  II U.MAN  MEMORY. 


'IV] 


a]>poar  in  court  and  acknowliMlge  his  orror  before  the  trial 
ch)se(l. 

It  is  but  a  part  of  human  nature,  tliat  tliose  who  have  had 
the  least  opportunity  of  observing-  the  occurrence  of  such 
niisrecollections  by  men  of  the  liighest  integrity,  are  the 
most  persistent  in  their  conclusions  that  they  are  crrtaiuly 
right,  and  are  loath  to  admit  that  others,  with  e(pial  oj^yor- 
tunities,  can  not  honestly  disagiee  with  them. 

1  must  again  re])eat  that  1  am  ai)palied,  wlien  I  remem- 
ber that  all  our  rights  may  dei)end  u|)tm  human  recolUn - 
ti(m,  which  I  know  is  so  liable  to  error,  and  when  I  also 
appreciate  that  it  isimpossil)le  to  devise  other  means  for  the 
ascertainment  of  truth.  At  best,  we  can  ascertain  all  the 
surrounding-  circumstances,  ami  idopt  those  conclusions 
wjiit'h  seem  most  probable  from  our  ol)servatioiis  (»f  human 
events,  and  these  observatiims  are  so  variant  in  dillVrent 
men,  and  we  may  so  often  ad()|)t  different  conclusions  from 
the  same  circumstances,  that  here,  too,  may  be  great  liabili- 
ties to  error. 

A  si)ecial  training  for  the  ascertainmont  of  truth  from 
g-iven  circumstances  is  of  the  greatest  value,  and  our  pi-o- 
fession  affords  the  greatest  facilities  for  this  trainino';  though 
we  may  soon  be  obliged  to  admit  that  the  modern  detect  i'\e 
system  allords  a  still  better  school,  for  the  reason  that  the 
mind  is  not  diverted  from  that  single  study  by  other  im- 
])ortant  matters. 


*■ 


;  ii 


APPENDIX. 


REr-OLLECTIONS  OF  THE  EARLY  BENCH  AND  BAR. 

ADDRKSS     l)KI,lVKRKn     IJKFOKK     TI!  K     H.IJXoIS     STATE     KAK     ASSO- 

CIATIO.V,    AT    SI'IilNOl'IKM),  JAXIAKV    2+,   ISU.'J, 

BY    JOHN    DKAN    CATOX. 

Jlr.   Pr,.«lfl'vt   and    Gentlemen   of  the   lUhiow  Staff   Bar 
Asmeiation: 

I  a])i)(vir  before  you  as  the  re])rcsentative  of  those  wlio 
once  iilled  the  phices  which  you  now  occupy.  It  is  a  souicc 
of  extreme  satisfaction  to  be  assured,  by  youi-  kind  invita- 
tion, that  amid  the  cares,  the  duties  and  the  resjxtnsibiiities 
of  an  arduous  profession,  I  am  not  forgotten  by  those  who 
have  come  up  in  hiter  years  to  fill  thi;  phices  and  Ix'iir  the 
burdens,  wliich  were  once  filled  an([  once  borne  l)y  th(»s(' 
who,  with  rare  exceptions,  have  been  called  to  ap|»(';ir  l»e- 
fore  a  higher  bar,  where  no  errors  are  committed  and  no 
rehearing's  can  be  ask(3d  for. 

Sixty  years  is  a  hmg  time  forany  indivi<lual  to  have  acted 
U])on  th-  stage  of  life,  and  the  changes  which  have  taken 
l>lace  during  that  time,  in  almost  every  branch  of  hunuin 
thought,  are  ver^'  great,  and  in  them  our  ])rofession  has 
largely  |)articii)ated.  Within  the  last  fifty  years  the  dif- 
ferent modes  of  doing  business  and  the  means  of  accom- 
l)lishing  desired  ends,  have  Ijeen  mor<>  inarktMl  than  in  any 
previous  thousau«l  years,  and  so  have  been  comjx'iled  alter- 
ations in  the  laws  and  in  the  modes  of  administering  them. 

(215) 


I 


'W 


I 


1i 


1 


i 

t 

r 

\ 

i 

a 


210 


EAULY  BENCH  AND  BAU  OF  ILLINOIS. 


^Finiv  of  tlu'se  npiiarcnt  clianiics  woi-e  possible  by  the 
courts,  uiidc'i'  tliu  llcxihility  of  the  coimnon  law,  simply 
hocaiiso  the  |n'iiK'iples  of  tiiat  law  were  founiled  upon  the 
reason  of  thin;^-s  and  the  results  of  human  exi)erienco. 

Old  rules,  which  had  been  adopted  by  the  courts  to  meet 
coiulitions  which  had  ])reviously  existed,  had  to  be  changed, 
oi-  even  abro^'ated,  as  new  emergencies  demanded,  as  reason 
an<l  experience  ilictated.  As  all  the  changes  in  the  law, 
which  altered  conditions  seeni  to  re(iuire,  coukl  not  be  made 
by  the  coui'ts  under  the  plea  of  construction,  legislative  en- 
actments were  in  some  cases  demanded,  and  the  Legislatures 
of  the  various  States  early  addressed  themselves  to  the  task 
of  ])assing  statutes  which  tliey  su|)|)()sed  were  recjuired  by 
the  altered  modes  of  conducting  human  alFairs.  Alanv  of 
these  were  wise  and  necessary,  while  in  others  it  would  have 
been  better  had  the  subjects <tf  them  been  left  to  the  courts, 
Avhich  were  better  (pialiiied  to  deal  with  them. 

From  long  experience  and  obsersation,  I  am  compelled  to 
sav  that  leu'islative  bodies  more  freciuentlv  legislate  too  much 
than  too  little.     This  is  by  no  means  a  new  evil. 

Even  the  liomans,  during  the  Imperial  ])eriod,  indulged 
their  mania  for  legislation  to  such  an  extent,  that  linally  it 
was  admitted  that  no  man  knew  what  the  law  was. 

And  hence,  under  the  reign  of  .lustinian  the  Great,  Tii- 
bonian,  with  his  associates,  ])repared  the  Justinian  Code, 
whii'li,  by  the  lmi)erial  fiat,  was  made  the  law  of  the  land, 
and  the  precedents,  or  decisions  of  the  courts  were  carefully 
diu'ested  in  what  is  called  the  Tandects,  to  aid  in  the  inter- 
pretation  of  the  Code,  and  from  these  grew  up  the  civil  law 
of  the  continent  of  Europe,  to  which  even  the  common  law 
is  indebted  for  those  great  pi-inciples  of  right  and  wrong 
Avhich  the  consciousness  of  wise  and  enliglitenetl  men  rec- 
ognizes as  just.  And  this,  in  its  broadest  sense,  should  be 
the  basis  of  all  law  for  the  i)rotection  of  individual  rights 
and  the  rights  of  organized  communities. 

The  courts,  compelled  by  emergencies,  have,  under  the 
plea  of  construction,  introduced  apparent  changes  of  the  law 


JUDGE  CATON'S  ADDRESS. 


217 


to  moot  the  (leiuan<ls  in  the  chanf,^cs  of  the  modes  of  do'uv^ 
hiisiness,  and  in  oeneral.  I  may  say,  these  elianiit'S  have  been 
(juite  as  salutary  as  those  made  by  the  Le^^ishituivs. 

These  rules  of  law  have  been  made  by  abh'  men,  deeply 
learned  in  the  scienee  of  <i'ov(M'nment,  with  m*  speeial  inter- 
est to  subserve  after  reeeiviuf^-  the  adviee  of  the  <^eiitlemen 
of  the  bar,  who  pi-esent  to  their  considerations  the  fruits  of 
deep  study  and  the  observations  of  experienee. 

They  act  under  a  sense  of  responsibility  to  the  whole  com- 
munityand  to  civilization,  knowini;'  that  their  decisions  will 
1k'  scrutinized  and  criticised  by  the  ablest  men  who  shall 
come  after  them,  and  who  must  pass  a  iinal  judiiiiient  upon 
what  they  do.  ]\Iany  more  safej^uards  ari'  tlirown  around 
the  judicial  tribunals,  to  secure  wise  and  in)j)artial  action, 
than  can  surround  Legislatures. 

The  former  have  no  constituency  whoso  si)ecial  interest 
thev  feel  called  u])on  to  subserve,  while  the  latter  have  varied 
constituencies,  who  may  have  conlllcting  interests  to  protect 
or  promote,  for  which  representatives  nuiy  feel  called  uj)on 
to  exert  themselves.  But  legislative  Itodies  can  not  be  dis- 
])ensed  with  in  free  governments.  They  are  the  very  bul- 
wark of  liberty,  and  whatever  conflicting  interests  they  ni;iy 
rei)resent,  as  atfecting  their  humediate  constituents,  when- 
ever great  interests  of  State  become  involved,  they  rise 
above  the  petty  considerations  of  local  intiMvst.  and  answer 
to  the  demands  o,'  patriotism  which  will  uphold  and  insure 
the  paramount  v.elfare  of  the  State. 

rrecedents,  or  previous  decisions,  involving  the  same 
princii)les,  have,  among  the  ancients  as  well  as  moderns, 
constituted  the  great  body  of  the  laws  in  all  civilized  coun- 
ti'ies,  and  so  they  will  continue  to  do,  so  long  as  the  avlvance- 
mentof  civilization  shall  continue.  When  the  exigencies  of 
society  shall  require  important  changes  in  ])rincij>les,  they 
must  1)0  brought  about  by  legislation;  but  the  inlirmities  of 
liunuin  language,  in  which  these  changes  must  be  expressed, 
are  such  that  the  courts  of  law,  whose  duty  it  is  to  enforce 
them,  must  give  them  construction,  and  so  declare   their 


IT 


218 


EAULY  BENCH  AND  BAR  OF  ILLINOIS. 


■!l 


{    !• 


i| 


i'  i 


hi 


nl\ 


Ft 


[Hi 


•   -         t 
1!  ■' 


iiK^aninr^.  and  give  tlioni  ])ractical  a])plication  to  the  affairs 
of  men.  Wise  h'gislation  is  of  little  value  without  wise  con- 
struction and  administration,  and  in  this,  an  al»le  bar  is  of 
not  less  importance  than  an  ahle  bench.  The  meml)er,s  of 
the  bar  are  the  legitimate  jidvisers  of  the  courts,  and  I  can 
say  from  personal  exj)erience  Lhat  such  jidvice  is  anxiously 
listened  to  and  most  attentively  considered.  It  is  a  staff' 
upon  which  the  courts  lean,  while  traveling  the  path  vhich 
they  are  ]>ursuing  when  seeking  the  ends  of  justice  and 
(Mjuity.  P^very  member  of  the  bar  shouM  ai)in<>ciate,  that 
while  his  duty  recpiii'es  that  he  should  defend  and  jjrotect 
the  intei-est  of  his  client,  he  also  owes  a  dutv  to  the  courts, 
to  aid  them  to  ari'ive  at  pro})er  results.  This  <loes  not  im|)ly 
that  the  lawyers  engaged  on  o])])osite  si<les  of  a  case  should 
always  maintain  the  sanu'  ])ositions,  or  defend  the  same 
])rinciples,  for  that  would  be  misleading  to  the  bench.  To 
arrive  at  sound  conclusions,  it  is  im])ortant  that  controverted 
(piestions  should  be  ])resented  in  vai'ious  asj)ects,  for  that  is 
in<lis])ensable  to  enable  a  court  ])ro|)erly  to  balance  the 
reasons  which  niav  l)e  uro-ed  on  either  side,  and  which  are 
necessary  to  arrive  at  corr«>ct  decisions. 

Seventy-five  years  have  elapsed  since  the  organization  of 
our  State  government.  TJut  tifteen  of  these  years  had 
])assed  when  I  came  to  the  State  and  identified  my  interests 
with  its  peo])le.  A  great  many  oi  those  Avho  had  live<l  here 
during  this  time,  and  in  the  territory  previously,  and  had 
helped  to  make  the  history  of  this  State  thus  far,  were  u|)on 
the  active  stage  of  life,  still  comparatively  young,  an<l  in 
the  full  vigor  of  manhood.  If  they  di<l  not  write  history  as 
they  made  it,  they  coukl  tell  it  most  charmingly  and  im])ress- 
ively. 

INfany  of  these  have  helped  form  the  constitution  of  the 
State,  and  as  the  population  Avas  small,  nearly  all  the  ])rom- 
inent  men  know  each  other,  and  knew  what  each  had  done 
that  was  worthy  to  be  remembered. 

As  is  usual  and  might  be  expected,  mend)ers  of  our  own 
profession  were  among  the  most  prominent  and  most  widely 


JUD«JE  CATON'S  ADDRESS. 


21U 


known  tlu'oiiti'hout  the  State,  nnd  juiioim'  those  T  foi-iiicd  niv 
first  iR'(|iiaintJUicos  and  my  first  tViendsliii)S.  I  was  the 
junior  of  them  all,  and  so  was  largely  d(.'i)endent  ui)()n  their 
kindness  and  friendship  to  help  me  in  the  dilKenlties  which 
must  always  heseta  younu'  lawyer eommencing  the  practice 
of  his  profession,  where  the  habits  of  the  people  and  the 
mode  of  proceedin*;'  dilfer  widely  from  those  in  the  State 
whence  he  came;  an«l  I  now  wish  to  hear  my  testimony  to 
the  large-hearted  o-enerosity  and  kindness  of  those  wh<»  then 
constituted  the  bar  of  the  State,  instead  of  thr<iwing 
obstacles  in  the  way  of  tlu'  new  comer.  tli(>v  extended  to 
him  a  fraternal  hand,  and  took  a  genuine  })leasure  in  help- 
ing- him  along  over  the  rough  places. 

At  that  time,  what  may  be  called  the  circuit  practice  lU'c- 
essarily  prevailed,  and  in  each  circuit  in  the  State  thei'c^  was 
a  class  of  lawyers  who  attended  most  of  the  coui'ts  iji  their 
own  circuits,  and  very  fre(|uently  attended  the  courts  in 
other  circuits,  mostly  to  try  imj)ortant  causes,  where  their 
special  reputations  had  caused  them  to  be  retained.  This 
circuit  practice  was  a  special  school,  u!ie(|ualed  in  its  way. 
and  in  it  these  circuit  lawyers  acquired  qualilications  which 
could  be  learned  in  no  other  school. 

Tliev  had  but  few  books  to  studv,  but  these  thcv  studied 
to  a  ])urpose.  IJIackstone  and  Coke  u[)on  Littleton,  were 
their  favcn-ite  books,  and  from  them  they  learncMl  the  funda 
mental  ]»rinciples  of  the  law,  and  the  reasons  why  the  law 
was  so;  and  1  may  be  permitted  to  say  here,  that  one  may 
learn  to  state  the  rules  of  law  as  theiy  are  laid  down  in  the 
books  till  he  can  repeat  them  like  the  alphal)et,  yet  he  is 
not  a  lawyer  unless  he  fully  comprehends  why  they  are  the 
law;  what  are  the  reasons  which  have  made  them  the  law. 
This  and  this  alone  will  enable  him  to  apply  th<^  law  in 
everv  emergency,  and  to  new  states  of  facts  as  they  must 
constantly  arise.  As  in  traveling  the  circuit  few  books 
couhl  be  carried,  and  l)ut  rarely  were  books  to  1)0  found  at 
the  county  seats,  exce])ting  the  statutes,  this  sort  of  h'gal 
qualification  was  indispensable  for  both  judges  and  lawycM's, 


220 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


.!  « 


and  tlio  clianictor  of  tlicir  work  was  sucli  as  to  train  tlieni 
to  tliiiik  (luicklvaiul  accuratclv,  and  tocliaiiy'L' tliu  thouolits 
rapidly  from  ono  subject  to  another. 

In  ))assin;^-  from  one  county  seat  to  another,  the  jud<^es 
and  hiu\ers  always  rode  on  lioi-sehaek,  with  saddlel»a<'s, 
very  frecjuently  traversin*^  uniiduibited  prairies  of  from  ten 
to  twenty  miles  or  more  across.  Indeed,  at  that  early  time 
all  the  settlei's  lived  in  cabins  alon<^  tiie  skirtsof  thetimber, 
with  inciosures  in  the  adjoining-  prairies  in  which  were  cul- 
tivated iields,  their  stock  ran^in«i,'  in  the  i^ntves  or  <;razin«^ 
on  the  prairies.  2searly  every  cabin  entertained  travelers, 
who  stopped  for  meals  or  to  stay  over  nitiht.  ]Iam  and 
c;''^s,  fi'ied  chicken  and  warm  biscuit,  with  good  colfee,  con- 
stituted the  menu  at  nearly  every  cabin.  If  the  position 
was  sucli  that  theai)proach  of  the  traveler  could  be  seen  some 
ilistance  away,  and  it  was  about  moal  time,  it  dul  not  i-ecjuire 
verv  atti'utive  listenin"-  for  liim  to  distin<;uish  the  outcrv 
<>i  the  chickens  fi'oni  the  lien-coo[)  as  one  <»i'  more  were 
b.'ing"  immolated,  which  he  knew  was  to  satisfy  the  cravings 
of  his  inner  man. 

If  a  boy  was  about  to  take  his  horse,  ho  might  go  into 
the  house  at  once;  if  not,  he  wtmld  have  to  stable  and  feed 
his  own  horse,  which  many  ])referred  to  (h»,  to  make  sure 
that  they  were  well  cared  for.  If  he  went  into  the  house 
:;oon,  he  might  see  the  good  hidy  ])ull  from  nn(UM'  the  bed  a 
brea«l-tray,  which  was  kept  constantly  supi)lied  with  dough, 
and  in  a  trice  the  biscuits  wouhl  be  molded  and  placed  in 
the  bake-pan;  chickens  were  placed  in  the  frying  ])an;  the 
cotfee-pot  was  set  to  brewing;  the  table  was  set;  and  in  an 
incredil>ly  short  time  he  was  seated  at  the  table  with  a  meal 
before  him  as  inviting  as  was  ever  sot  before  a  jguost  in  the 
most  fashionable  hotel,  with  the  most  modern  conveniences. 
The  food  was  plain  but  substantial,  and  was  always  cooked 
to  a  turn.  It  was  not  smothered  up  in  rich  condiments,  but 
its  flavor  was  most  appetizing.  Even  now,  I  fondly  remem- 
ber the  feasts  which  I  have  enjoyed  in  those  log  cabins. 

In  riding  from  one  county  seat  to  another,  the  judges 


!!! 


JUDliE  CATON'S  ADDRESS. 


^^21 


and  liiwyors  <>'(MKM'iilly  ti-avclod  in  a  band  tonotlicv.  nlllionuli 
not  always  in  a  t'onipaet  Ixxly.  rsually  tlu*  ^ait  was  a  fast 
AvalU  or  a  slow  trot,  and  frcctuently  the  hand  would  he  sep- 
arated into  little  sqnads  of  from  two  to  four,  when  the 
monotony  of  the  ride  was  relieved  by  conversation  and  the 
relation  of  anec<h)tes  or  story-tell inc^,  as  it  was  called, 
thoujih  ordinarilv  these  last  were  reserved  for  the  <n•t>nin^^ 
when  the  whole  ])arty  would  he  assend)led.  Then  it  was 
that  the  deli<^-hts  of  circuit  riding'  wen^  most  a|)|)reciated. 
All  \/ere  f»'ood  story-tellers,  and  with  rare  exceptions  each 
one  a<lded  soniewhat  to  his  st(»re  since  the  last  incetinu'. 
either  from  havinijr  heard  a  •••ockI  storv  from  sonielxxlv  else 
or  invented  one;  and  a  new  stoi'v,  if  it  were  oidy  a^^'ood 
one,  was  always  received  in  the  way  th.at  showed  that  it 
was  fully  appi'cciated.  Frecpiently  a  (piite  oi'dinarv  inci- 
dent would  be  dressed  up  and  so  embellished  as  to  be  ex- 
ceedingly ludicrous  and  amusiny. 

The  early  circuit  riders,  for  the  ]iurpose  of  illustratin<i: 
certain  characteristics  of  the  human  mind.  uscmI  to  tell  a 
story  of  Judg-e  Harlan  (a  name  suir^-estive  of  the  •ermine^ 
when  he  was  circuit  jud^-e.  They  stated  that  when  he  had 
closed  his  court  at  a  little  town  in  the  southern  pai't  of  the 
State,  and  nearly  all  were  ready  to  mount  their  horses  and 
proceed  to  the  next  county,  and  just  as  he  was  ])!ittinn'  his 
foot  in  tlu^  stirrup,  a  lawyer  rushed  u])  with  a  ])ap('r  in  his 
hand,  and  asked  him  to  si^n  a  l>illof  exceptions.  With  evi- 
dent marks  of  impatience,  he  dropped  the  reinsof  his  bridle, 
and  hastened  back  into  the  lo^'  tavern  and  called  for  ])en 
and  ink,  which  were  shown  him  on  the  little  counter  in  the 
bar-room,  (ioose  quills,  then,  only  were  used  for  pens.  He 
seized  one  and  jammed  it  into  the  inkstand  with  such  forct; 
as  to  spoil  it.  lie  only  appi'cciated  this  when  ho  attempted 
to  si^n  his  name.  And  this  ci-ushin^'  |»i'occss  he  repeated 
several  times  before  he  succeeded  in  writin<^  his  name,  and 
then  it  Avas  hardly  legi!)le.  when  he  threw  down  the  ])en 
and  paper,  evidently  in  bad  humor,  and  l)olted  from  the 
house,  mounted  his  horse,  applied  the  whip,  and  took  the 


r 


0«)0 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


Iciitl  ii|)(»)i  tlic  tniil  which  UmI  iuross  a  tc-n-inile  idiiirir  to 
H  {■ii\)\n  ill  a  <4r()ve  ul"  tiinlKM*. 

Tho  rest  followed  as  Ucst  thcv  couhl;  luit  none  couhl  sm*- 
co(m1  in  olifitin;;-  from  him  oven  a  word  of  reco^rnition  dui'- 
in^  the  ride.  AVhen  ho  readied  the  eal>in,  he  accosted  a 
woman  who  stood  at  the  front  of  the  house,  and  asked  her 
for  a  drink  of  water.  This  she  broiiLrht  him  in  a  ^iourd, 
from  the  well,  of  which  In^  drank  heartily,  and  when  he 
returned  the  ^'ou I'd  to  tho  <^ood  lady.  In*  n'marke<l.  *' That 
is  n()(,(l  water  and  I  tell  you,  mtidam.  they  do  keep  the 
infernallest  pens  back  in  this  little  onery  town  that  we  just 
loft,  that  you  ever  saw."  and  he  a<>ain  took  the  lead,  apiiar- 
ently  still  brooding  ovei'  those  jiens. 

Kuchre  parties  wore  fretjuently  formed,  antl  so  was  time 
])leasantly  ])ass«Ml ;  a'.d  s«Miietimes  a  tlanco  was  «^  tten  uj), 
wIkmi  an  old  liddlo  could  be  found,  and  s<tme  one  was  capa- 
l)l<' of   usin<»' it.     Judiio  Vouny- himself  was  deenie<l  the  best 

o  o  o 

li<ldler  on  the  circuit,  and  so  contributed  much  to  the  hilar- 
ity of  such  occasions. 

Sometimes  a  mock  trial  was  instituted,  when  an  indict- 
ment was  ])resented  a<j;ainst  some  memlierof  the  bar.  accus- 
ing him  of  most  ridicul<»us  crimes,  embellished  with  laugh- 
alile  incidents.  On  such  occasions,  the  judge,  tho  lawyers 
and  the  witnesses  fairly  oveillowed  wit'.i  wit ;  a!id  boister- 
ous laughter  was  not  considered  al)reachof  dect>rum  in  that 
court,  and  the  verdict  of  tho  jury  ])artook  of  tho  character 
of  the  previous  doings.  A  verdict  of ''guilty"  was  almost 
a  foregone  conclusion,  and  the  penalties  inllictetl  were  fre- 
(|uently  tho  most  ludicrous  and  amusing  of  all  the  proceed- 
ings. If  the  wit  was  ko<'n,  it  was  fretpiently  d«'i'ply  ])one- 
trating,  but  the  subject  of  it  must  bear  it  goo<l  naturedly 
and  console  his  irritated  feelings  with  the  reflection  that  he 
would  get  his  revenge  on  some  future  occasion.  To  show 
irritation  at  hard  rubs  was  the  worst  thinga  man  could  do, 
but  to  turn  them  otf  in  some  witty  way  enhanced  his  popu- 
larity ior  the  time. 

But  the  first  few  days  of  the  term  could  not  be  given  up 


h  ' 


It!  Il 


[ 


JUIMJK  CATON'S  ADDRKSS. 


^  —  •t 


to  ;in)ns('iM('iit;  all  tliuiinjits  imisl  he  Itciif  uii  hiisiiicss.  I'c- 
t'orc  tjic  i-iiviili'ii(l('ol'  judges  iiiul  iiiwvci's  li.-ul  iin-ivcd.  suitors 
jiiid  their  friends,  witnesses  and  sightseers,  had  already  a|>- 
jM'ared.  and  were  awaitin;^-  this  important  ari'ival;  and 
scareely  hail  the  advocates  disinoimteii,  ;jenerally  covered 
with  dust  or  innd.  when  they  were  siirronnded  l»y  clients. 
eajivrly  seeking'  to  en^^auc  their  I'avoi'ite  counsel,  and  as 
soon  as  their  le«i';iin^s  and  dusters  or  overcoats  could  he  dis- 
cai'ded,  they  i:aveear  t<»  tho^■e  whoson<4ht  theii' services,  and 
listened  to  hi'iel'accounts  of  the  cases  in  which  their  sei'vices 
were  sou «;ht.  One  man  wanted  a  suit  delended;  another 
wanted  a  case  tried:  anotliei-  a  suit  commenced,  and  soon 
everything'  was  hustle  and  excitement.  Special  pleas  must  !»<• 
pi'epare  I  in  onec.ise;  in  another,  a  de:nun'>'i'  must  hi'  liled;  in 
a  third,  a  hill  in  chancery  must  he  drawn,  or  an  answer  |irc- 
pared;  and  in  anothei'.  prepai'atioiis  foi'a  trial  which  mii:ht 
come  <»ir  immediately;  ami  linaily.  some  po(»r  fellow  \vas  in 
jail  for  horse-stealing,  oi' counterfeit  in;j'.  or  perhaps  foi- mur- 
dei',  who  wanted  a  lawyer  todeft-nd  him;  and  all  this  heteroot- 
lu'ous  mass  of  iiusiness  was  imisImmI  in  upon  them  in  a  man- 
ni>r  which  would  have  confused  any  mind  not  well  ti-ained 
to  that  mo«le  of  |)racticin^'  law.  \ot  infi'e(pi«MitIy,  men  wi'i'e 
(ailed  in  to  {-aUv  jtart  in  a  trial  when  the  jury  was  already 
heinji' called,  and  they  must  leai'n  the  case  during'  the  triid 
itself,  and  it  was  astonish iiit^'  to  see  how  rapidly  they  could 
see  the  salient  jxtintsof  the  case,  and  metluulically  arrange 
and  present  them. 

In  the  sprino- ()f  ]s.']r>,  for  the  first  time  T  attended  tiie 
Cii'cuit  f'ourl  at  Hennepin,  in  rutnam  County,  which  was 
hehl  hy  .Indue  IJreese.  and  thei'(»  I  first  met  him.  Every- 
body was  talkiM<»"  of  the  case;  of  one  Pierce;  he  was  in  jail 
on  the  char<i:e  of  larceny,  and  it  was  said  tiiat  he  had  )iot 
(»nly  confessed  that  he  stole  the  <^oods,  hut  that  a  witness 
named  Th<mipsoii  had  sworn  before  tin;  committi?!^  ma<>'is- 
trate  that  he  saw  him  steal  them.  As  I  was  entirely  un- 
known I  took  little  interest  in  the  matter,  only  I  was 
struck  with  the  iretpient  expressions  of  sympathy  for  the 


Hi 


\w 


2-2  i 


KAHLY  HKNCII  ANi»  UAR  OF  ILLINOIS. 


1   i 


«    M 


^5? 


])iMS()nor,  wliicli  T  licai'tl.  and  soino  ovrn  oxprosscd  diMihts 
of  Ills  Hiiilt  iit'tci'  all.  .ludn'c  l>?'«'('s»'  (>|MMi('d  tlic  cuiii-t  tlin 
next  iMorniiiL''.  ofnaiii/.i'd  tin*  ^n'aiKl  jiii'v.  \vli(t.  in  tlu'cniiisc 
of  ai)  lioiii',  Itrniin'lit  in  an  indictiiirnt  a<;ainst  IMt'icc,  who 
>vas  din'ctly  In-onirlit  into  coiii't.  When  lie  wasasktMJit' Ih'* 
lia<l  counsel.  ln>  ri'itlicd  lie  had  not,  and  had  nothin;^'  with 
^vlli('ll  to  pay  counsel,  and.  in  answer  toa  (piestion  liythe 
court.  e.\])r<*ssed  a  <lesii'e  that  connsel  nii;;'lit  he  a|)|i«»inted  to 
deteiid  him.  Thejudiic  then  asked  nieil"  I  would  undertake 
liis  defense,  assisted  hy  .Mr.  .Vtwater.  a  youny  man  just  admit- 
ted to  the  l»ar.  and  very  lately  settled  in  the  town — the  lirst 
lawyer  there.  We  accepted  the  ap|)ointment,  of  course,  it 
was  not  unusual,  at  that  timo,  when  a  new  lawyera|)|>eared  at 
the  openinji' of  the  circuit  for  the  juduc,  as  a  mo<le  of  in- 
troducin^i'  him  to  \\\o  peo|>le,  to  ask  him  to  defend  a  ci'im- 
inal,  or  to  eharti'e  the  fji'and  jury,  or  the  like,  and  W(>  a|)- 
])reciated  this  appointment  as  an  act  o\'  kimlness  on  the  part 
of  the  jud^«\  We  took  our  client  out.  and  sat  down  on  tiie 
^rass  in  the  corner  of  a  I'ail  fence  to  leiMii  from  him  what 
we  could  of  the  case,  still  supposin;.;-  it  was  one  of  those 
des|)erato  cas(^s  when^  no  defense  is  j)ossil)le.  AV^o  retpiested 
J*ierco  to  t<'ll  us  the  exact  truth,  for,  if  h<^  were  <.>'uilty,  we 
could  make  a  Ix^tter  defense  hy  knowinij  all  the  circum- 
stances of  the  case,  than  to  i>()  into  the  ti'ial  iunorant  of  tin; 
I'cal  facts.  lie  said  he  was  perfectly  innocent;  that  Thom|»- 
son  and  his  own  wife  had  stolen  the  yoods,  and  he  ha<[  con- 
fessed he  stole  them  in  order  to  lot  her  escape;  and  that  h(; 
was  so  sick  (m  the  ni«^'ht  of  the  larceny  that  he  could  not 
leave  his  IkmI,  and  was  attended  by  a  nurse  and  a  doctor. 
After  a  .s<»arclun<:j^  investigation,  we  wvw  convinced  of  his 
innocence.  J'ierce  also  stated  that  Thompson  was  a  rullian 
and  a  terror  to  the  whole  ])eo])le,  and  that  evorylxxly  was 
afraid  to  say  a  word  against  him.  The  court  gave  u.s  till 
next  morninir  to  prepare  for  trial.  As  I  was  going  to  my 
dinner,  a  man  crossed  the  street  quickly  and  spoke  to  mo 
in  a  low  voice,  saying  that  ^Fr.  and  ]Mrs.  Fitzgerald,  who 
lived  two  milos  across  the  river  in  a  log  cabin,  knew  some- 


.IllXJK  CATUN'S  AUDRKSS. 


22r, 


thin^r  tliat  would   lirlp    Pierce,  if  tliey  could  be -ol  to   tell 
it,  and  di.sii|>|K'iii'(Hl  as  iMn  uliiriM. 

I  seaively  waited  for  dinner,  wIumi   I   mounted  my  liorse 
and  was  on  the  WiiA- to  the   Kitz^vruld  cahin.     After  I   li:id 
exhausted    every    rllort    lo    jillay   their    niiinifest    ft-iir   of 
'riionipson,  they  linally  consented    to   tell    me  wlnit    lliev 
knew  of    the  cuse,  which  was,  that   they  hud  slept    in    the 
hons(>  on  tlio  ni,!rht  of  the  lurceny,  and  hud  seen  Thompsi.ii 
and  I'ierce's  wife  take  the  n(„,ds  from    a   l»ox,  ahont  mid- 
nin|it,and  put  them  in  Pierce's  trunk;  und  tliey  promised  to 
appear  in  court  the  next  moruinn- und  testify  to  what  tlu-y 
knew.     I   oalloped    hack,  even   fuster  than  I  hud  c<.me,  und 
found  thut  Atwut(>r  hud  seen  the  nurse  uml  (h.ctor,  who  hud 
corroliorated    Pierce's   statement   ahont    his   sickness.     Of 
couiso  we  kept  all  this  a  profound  secret,  <'ven  from  Pierce. 
On  th(^  trial,  the  next  inornin;--,  Thomp.^.n  swore    thut  he 
suw  riorce  steal  the  <,n)ods,  uiul  in  my  cross-exuminution   I 
directed  my  efforts  to  make  him  swear  to  this  in  thesti'on;^'- 
est  way  ])ossible,  arul  thus  a|»purently  injure  my   case,     Jn 
the  (h'fense,  we  first  hnmoht  the  doctor  and  the  nurse,  und 
then  Afr.  and  Mrs.  Fitzgerald,  who  seemed  to  have  lost  all 
terror  of  Thompson,  and  tohl  the  whole  stoi-y. 

Here  was  a  /^-reat  chance  for  a  speech  i);'foro  a  n(>w 
audience— not  for  Pierce,  for  he  needed  none,  butformvself 
—in  which  I  pictured  Thompson  asaridllan,  thief,  perjurer 
and  as  a  lecherous  scoundrel  <-(.iu'rally,  in  words  which  i  ha<l 
been  all  the  nif-ht  before  recallin«,r ;  and  before  I  was  done  he 
slunk  away  out  of  the  room  and  nuide  for  the  bush.  Aft<'r 
a  verdict  of  accpiittal,  the  court  adjourned,  and  before  I  had 
reached  my  hotel  I  was  retained  in  every  cause  the?i  pend- 
in<r  in  that  court,  and  in  some  very  imjHM-tant  causes  to  be 
commence*!,  and  never  after  did  I  Avant  for  clients,  so  lon<^- 
as  I  attended  that  court. 

It  was  at  the  Putnam  Circuit  Court  that  T  first  met  Judoe 
David  Davis,  and  it  is  with  great  satisfaction  that  I  stat«; 
that  we  were  ever  after  warm  personal  friends. 

When  John  York  Sawyer  was  circuit  jud^e,  it  was  said 
15 


11 

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1 

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i 


2'2G 


EARLY  BEN'CU  AND  BAR  UF  ILLINOIS. 


that  in  tlu;  adinlnistratioii  of  criminal  justice  he  did  not 
always  adhoro  to  the  conventional  rules  of  practice.  Once, 
(-Jen.  Turiiey  was  derendiii<>;  a  man  for  iiorse  stealing-.  At 
that  time  the  punishment  for  that  crime  was  at  the  whip- 
])ing'  jiost.  Just  before  noi^a  the  jnrv  l)i-oug;ht  in  a  verdict 
of  guilty,  when  tiie  gener;;!  m<)ve<l  for  a  new  trial.  Then 
it  was  that  the  dinner  hell  was  heard  at  the  little  tavern 
where  they  all  stopped,  when  the  judge  rfinarked:  "(ien. 
Turney,  I  hear  the  dinner  iiell  ringing  now;  we  will  ad- 
journ court  tdl  after  dinnei-.  when  I  will  hear  you  on  this 
motion."  AVhen  the  shei-ilV  had  adjoui'ued  the  court  the 
judge  motioneil  him  up  while  he  still  s;it  on  the  bench,  and 
\vhisi)ered  :  '*  While  I  am  tvone  to  dinner,  vou  take  this 
rascal  out  and  give  him  thirty  lashes,  and  see  that  they 
are  well  laid  on;  1  am  bound  to  break  up  horse  stealing'  in 
this  circuit." 

WluMi  the  court  op;MU'd  after  dinnei',  the  judge  told  General 
Turney  he  could  go  on  with  his  motion  for  a  new  trial,  and 
lu>  did  so.  In  the  meantime  tlu»  shei-ilf  had  ol)eyed  orders, 
and  after  the  whipping  had  delivered  the  culprit  over  to  his 
friends,  v.ho  washed  olf  his  lacerated  back,  to  which  they 
apj)lied  a  lotion,  and  then  |)ut  on  his  clothes,  after  which  ho 
went  limping  down  the  street.  Ashe  |)assed  the  court  house 
dooi",  he  heai'd  his  counsel's  voice,  and,  upon  listening,  dis- 
covered that  lie  was  earn(\stly  |)Ie:iding  I'or  a  new  trial  in 
the  case.  wluM'cupon  he  I'ushed  int(t  the  court  house  and 
cried  out."  For  (iod's  sake,  (Jeneral  Tui'iiey.  lion'tget  a  new 
trial;  if  tney  try  uie  again  they  will  convict  me  again,  and 
then  they  will  whip  me  to  deiith."  The  general,  of  course, 
was  dund)founded,  and  apj)ealed  to  the  court  to  know  what 
this  all  meant.  The  judge  (juietly  remarked  that  that  was 
iill  right;  that  in  order  to  make  sure  that  no  horse  thief 
sh<»uld  escape  punishment  in  his  circuit,  he  had  ordered  the 
sherilt' to  whij)  the  rascal  while  they  wei'c  gone  to  dinnei-, 
iiiul  lu!sU]»i)osed  he  haddone  so,  I  was  informed  that  horse 
thieves  did  become  scarce  in  -ludge  Saw\'er's  circuit. 

Judge  Ford,  wlu)  related  this  event  to  me, often  expressed 


JUIMJE  ('AXONS  ADDUESS. 


OOT 


tlio  opinion  tliat  whipjdn*,'  was  a  mucli  nioro  dctorront  piiii- 
islinient  for  crime  than  iin|)i'i.sonin('nt;  that  he  never  saw  a 
eriniinal  sentenced  to  be  whipi»e(l  wlio  did  not  cringe  at  the 
sentenc.';  while  he  liad  rarely  seen  a  prisoner  nianilest, 
emotion  ;it  bein,:^'  sentenced  to  a  h)M;4-  term. 

hi  lSL>ii  an  act  was  passed  which,  as  the  State  was  but 
eleven  years  old,  jnav  be  iustiv  ranked  amony  our  Icrjil  antid- 
uities.  That  act  provided  that  in  the  absence  of  the  circuit 
judge  (Jnd<«e  Youno-;  the  Circuit  Court  ol"  Jo  Daviess 
county  might  beheld  by  three  justices  of  the  peare  of  the 
county,  and  under  this  law  the  lirst  circuit  court  of  tlint 
county  was  so  held,  and  Judge  Young  rchitcd  to  mc;  som«( 
amusing  incidents  of  the  court,  when  lu'ld  by  the  thi-ee  jus- 
tices, in  their  austere  efl'orts  to  maintain  the  dignity  of  tiie 
court,  I  have  failed  to  lind  any  subseipu'ut  act  rcjieaiing 
that  statute,  an<l  if  it  has  not  been  repealed  dii-cct.ly,  oi-  by 
imiJication,  that  circuit  -nay  still  be  hrld  by  justicrs  of  the 
peace,  by  reason  of  which,  such  magistrates  in  Jo  Daviess 
county  may  claim  to  occupv  a  higher  j)lane  of  dignitv  and 
jurisdiction  than  the  justices  of  tlu'  ju-ace  in  other  counties. 

But  those  hajjpy  days  of  cirruit  ])ractice.  and  jolly 
nights  and  wai-m  and  sym|)athetic  friendships,  begotten  of 
such  associations,  are  now  gone  fr)i'evei',  1  fear,  in  this 
State-  and  necessarily  so,  for  the  conditions  wliidi  mad.' 
theui  ,M)ssible— yes,  which  necessitated  them-  havcf  passed 
away,  nev(>r  to  return.  J>ut  it  nun  be  well  that  a  re.ord  ..f 
them  should  be  preserved,  so  thai  they  may  in. I  be  entirely 
forgotten. 

1  may  mention  a  fov,  men  w^io  rode  the  circuit,  b.'fort 
my  day.  whose  names,  and  (.f  w.iose  abilities.  I  lanvd  from 
the  lips  of  others,  though  for  very  few  ol  the.se  ean  space 
be  spared  to  illuminate  this  page.  All  praeli/ed  in  the 
southern  counties  of  the  State.  There  weie  ILibbard  and 
Harlan,  Kent,  Cook,  Keynolds,  SemiJe,  Fohjiuh*  and  Saw- 
yer, 

Of  those  whom  T  met  and  kmnv  personally,  tlic list  would 
be  long,  though  only  a  j»art  of  these  did  1  e\cr  meet  upon 


J 

?!    i 


223 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


iho  circuit,  and  some  of  them  T  only  knew  as  jiuloes,  and 
not  iis  |iracticin<>'  lawyers.  There  Avere  the  four  judges  of 
the  Si'[)r('me  Court  when  I  came  to  the  State — Wilson, 
IJrown,  J.ockwood  and  Smith— and  Youn;:^,  who  was  judgv 
of  the  Jifth  circuit.  With  all  ol"  these,  exce[)t  Smith,  I  sat 
upon  the  bench  of  tlu^  Su[)renie  Court.  Logan,  Hardin, 
Stewart  and  Stone  I  met  at  the  lirst  circuit  court  I  (!ver  at- 
tended in  the  State,  at  IVkin,  in  is;;.",.  Young,  Ford, Mills. 
Mi\y  and  Strode  I  first  met,  in  lSo4,  at  the  lirst  circuit 
court  ever  held  in  Cook  county.  I'reesc  I  first  met  when 
he  held  the  Circuit  Court  in  Putnam  county,  to  which  I 
have  alrcad}'  referred,  I  may  he  allowed  to  nu^ntiona  few 
others  of  the  lawyers  Avho  traveled  the  circuit,  nKjre  or  l-ss. 
forty  years  ago:  Snyder,  (lillispio.  Browning,  "Williams, 
David  J.  I'alvcr,  Edward  Daker,  Shields,  K()ern;>r,  Trum- 
bull, ^lori'ison,  (Jrimshaw.  Camj)l)ell,  "Wheat,  aMcIiolxM'ts, 
Field,  I'eters,  Purjjie,  Dickey,  ,Iesse  B,  Thomas,  William 
Thomas,  AVliitney  (Lord  Cok(>),  ]\[cConnell,  JNlartin,  Linder. 
P>.  C.  Cook,  Fridky,  Tliomi)./m  Campbell,  Marshall,  John 
A.  Logan,  Gridley,  ^linchell,  Joshua  Allen  and  Lincoln, 
who,  it  is  scarcely  necessary  to  state,  was  always  the  vei'v 
soul  of  hilai'ity  and  amusement  on  the  circuit.  ]Iis  capacity 
forillusti'ating  either  wit  oi' argument,  whether  upon  a  trial 
in  C(»ui't  or  in  our  social  gatherings,  always  distinguished 
him  from  other  men.  His  very  presence  was  a  joy  to  all. 
The  law  and  cliancei-y  jurisdiction  have  ever  been  exer- 
cised bv  the  same  courts,  and  the  common  law  and  iMii-lish 
chancery  system  of  pleading  have  ever  prevaibnl  in  this 
State,  with  very  few  statutory  modilications.  The  first 
modilication.  foi  the  p«r[)ose  of  simplifying  ]»h'a(lings,  was 
nuide  by  a  veryeiirlv  statute,  Avhich  authoi-i/.ed  actions  to  be 
commenced  oil  promissory  notes  by  ])etition  aiul  summons. 
Avhich.  it  wa,s  thought,  would  so  simplify  matters  tliat  every 
one  c(»uld  be  his  own  lawyer;  but  its  use  was  never  general, 
or  even  c»»«»JUion,  and  I  have  nevei'.  <luring  all  my  experience, 
known  more  than  two  actions  to  U»  brought  under  it.  and 
those  not  with  very  economical  fi^ults.     Another  im[)(jrtunt 


I 


JUDGE  CATONS  ADDTIESS, 


220 


cliarf^c  was  oiu'ly  iniule  in  clmnforv  by  uutlion'/in^j:  tlio  com- 
plainuiit  in  iiis  bill  to  wnive  tlio  oath  to  the  unswor,  wIumi 
the  answer  should  not  bo  ovidcneo;  and  anotlior  clianiics 
auLiioHzino-  ji  dc'i'ciidant  to  uttaeh  t(j  his  aJiswei'  intci-ro^-ato- 
ries,  which  the  complainant  must  answer  under  oath.  Tnder 
this  last  |)i-ovision,  thecourts  had  been  in  the  habit  of  i>-rant- 
in<!:allirmative  relief  tothe  defendant,  and  this  question  iiap- 
penod  to  Ik' presented  in  a  case  of  I5allancov.  rnderhiJl.  which 
Avas  the  Hi-st  case  ever  assioiuMl  to  me  in  which  to  write  an 
opinion,  and  L  wrote  it.  ivversin;--  that  part  of  the  decree 
which  nave  to  the  d(>fendant  alliniiative  relief,  allirmino-  ail 
the  rest;  and  on  this  point  f  had  my  first  strnuol,.  with  mv 
associates,  who  said  it  had  been  the  uniform  practice  to  grant 
such  relief  in  similar  cases. 

At  that  time  .Judue   Pope  of  the  T'nited  States  District 
('ourt,  at  Sprin,i>licld,  was  in  the  habit,  when  he  had  leisure, 
of  droj»pin<>' into  the  conf(M-enco  room  as  freely  as  if  !;e  weic 
a  member  of  the  court,   without  at  all  intci'i-uptinu'  thed«- 
liberations  then  prooressin<'-;  and  he  hapixMied  to  come  in 
while  we  were  oonsiderin«:-  this  controverted  (piestioii.     lie 
seemed  to  listen  attentivi'ly  to  tlu^  discussicm,  while  I  wjis 
tryiuf,^  to  maintain  my  |)osition  ao-ainst  all  of  the  others. 
At  length,  the  conference  adjourned  without  takinu'  a  vote, 
and   wo  sejjarated.     AVhen   we   were   passini"-  throuuli    the 
library  on  our  way  out,  the  judoe  came  u])  tome  and  patted 
ino  on  the  !)ack,  sayin;>-,  '•  My  boy,  you  are  rin-ht.     Stick  to 
them,  and  they  will  come  to  yon  at  last.     Come,  nc,  to  mv 
room  and  cmoke  a  ])ii)e  with  me."     I  did  stick  to  them,  and 
they  did  come  to  me  at  last,  and  voh d  unanimously  Utv  the 
opinion:  and  the  rule  was  then  adojited   re(|iiiriiin  a  ci-oss- 
bill  to  be  liled  in  ord(>r  to  authoi-ize  allirmative  relief  to  be 
^•ranted  to  the  defendant,  which   has  "ver  since  ])revaile(l.  I 
think,  with  the  gen(M'al  ai)i)roval  of  the  l)ar. 

J3y  practice  sanctioned  by  courts  and  lawyei-s,  much 
of  the  verbosity  and  formalities  rcijuired  in  the  Enoljsh 
courts,  in  both  the  common  law  and  chancery  ])lea(linL>',  was 
eliminated  in  early  times,  and  I  tliink,  with  marked  advan- 


wt 


iR  1  i 


.'» 


li. 


230 


KARLY  BENCH  AND  BAR  OF  ILLINOIS. 


tiiij^os:  wliilc  all  tlwit  wns  suhstantivo.  and  ncccssarv  f:iiriy 
to  advise  tlio  opposite  paj'ty  of  what  lie  had  to  inei't. 
Avas  retained.  In  this  way  has  <i;'radiially  <ii'o\vn  up  a 
ehang-e  in  onv  system  ol"  ])leadiiig-  which  ;,really  simplifies 
tlu!  work  of  the  profession  and  the  courts:  and  the  system 
thus  wroiit^ht  out  has  tended  to])romote  the  ends  (►f  justice, 
as  much,  at  least,  as  has  been  done  by  the  a(h»|>tion  of  co(U>s 
in  otIuM'  States  which  were  desio-nod  to  accomplish  the 
same  end.  AVhetluM*  there*  has  been  a  I'clapse  of  the  old 
formalities  and  redundancy  of  wor<is  since  my  time,  [  can 
not  say  ;  on  that  subject  you  are  the  bestinfoi'uu'd.  Almost 
from  the  beuinniui,'',  it  has  ceased  to  be  necessary  for  a  bill 
in  chancery  to  contain  a  thneetold  tale,  as  in  the  old  forms 
containing'  the  statinir,  the  charL'in^'  and  the  interrou-atini:' 
]>art,  in  each  of  wliich  the  facts  had  to  be  repc^ated  in  my 
llrst  bdl,  with  <!^i'eat  lal)oi',  I  followed  this  rule:  but  ever 
since.  T  have  deeme<l  it  Ix^tter  to  simply  state  the  facts  ujton 
will  -h  I  relied  for  relief  in  the  .-;liortest  and  cleai'(>st  manner 
])ossil)le.  If  an  unnecessary  fact  I)e  stated  in  a  ]>U'adini:^,  it 
may  some  time  rise  up  to  pest«M'  the  plea(h>i'.  I  early  learned 
to  ajijireciate  the  importance  of  und(  rstaii<lin^'  tlu'  reasons 
why  certain  rules  of  law  had  been  adojited,  not  only  from 
my  circuit  [iractice,  liut  from  my  <i"eneial  practice  as  well. 
The  reasons  of  the  law  are  the  Him]  air'  essence  of  tlie  law. 
Duriny  my  time,  that  is.  up  to  the  time  I  resiLined  the 
chief  justiceship  of  (Hir  Supreme  Court  iu  ISC,  |.  the  rules  ol 
]  "actice  or  modesof  admin isterino'  j  stic',  to  a  lai'o(>  extent. 
remained  unchanued.  Since  then  important  chanii'es  have 
i)(>eii  made,  with  which  I  have  not  kept  ]>ace  as  a  lawyer  in 
active  ])ractice  necess;;iily  would  havei'.oiu'.  I  was  forcibly 
reminded  of  this  a  numlxM"  of  y(>ai's  a;^'o.  when  I  went  into 
the  Circuit  Court  in  Chicau'o.  wliere  a  case  was  pendinf,''  in 
which  a  corporation  in  which  I  had  s<Mne  intei-est  was 
lilaintitf.  and  two  individual  partii's  were  defendants.  When 
I  went  in,  a  motion  was  beinu'  ar<iued  for  a  ctmtinuance  by 
the  defendants.  As  the  iilaiutilf's  case  was  conilucted  by  a 
vouim- lawyer,  and  I  tliou!>'lit  I  sawsoiiio  indications  that  he 


JUDtiE  CATONS  ADDRESS. 


2:U 


Avns  j^ottin^  tlio  woi-st  of  it,  I  tuni'.'d  in  tit  Iidp  liiin.  mid  in 
the  coin's<M)t'  iiiyrcmai'ks,  .Iiidiic  Murphy,  wiio  pi-csidcd.  dis- 
covonvl  tli.itl  wiisiii'iiorjmt  oi"  a  l:it(;  statute,  wIumi  liclviudly 
siii>'^('stod  that  a  statutji  hadchaiiu'ccl  the  law  :  tliat  we  niinlit 
taiv'o  judo-mont  a<^^ainst  one  of  tht;  two  joint  (hd'endants.  and 
not  a<^'ain.st  tiie  other.  Tins  astonished  nie,  and  I  felt  lik(^ 
exc'hiiniing  with  an  Indiana  attorney  hMiy-  a<i-o,  as  i-elated  l)y 
Chiof  Justices  AV^dson.  lie  re))oi'ted  that  a  ease  was  pendiiiii' 
before  an  Illinois  justice  of  the  ])eaee,  (h)wnon  the  Wabash, 
in  ..hic'h  an  Illinois  lawyer  was  eniraii^e  I  on  one  si(K>  and  an 
Indiana  lawyer  on  the  other.  In  the  course'  of  the  ti'ial,  the 
Illinois  lawyer  assei'ted  a  |)rinci|)le  of  law  which  was  denied 
by  the  lloosier,  who  denounced  it  as  the  most  al)snrd  propo- 
sition ever  heai'(l  of  in  any  civili/ed  coniiniinity.  and  that  it 
never  could  be  the  law  except  anions'  bai'barians.  I'poii 
this,  his  o|)ponent  placed  liefoi-e  him  the  lllimiis  statutes, 
which  declared  the  disputed  propt>sitii»n  to  hr  the  law  <>f 
this  Statt^  After  the  I ndianian  recovered  from  the  shock 
which  this  statute  produced  up<in  his  nerve  he  straiiihtened 
himself  np,  and  with  i^'reat  solemnity  exchiimcd  :  ••  May  it 
please  the  court ;  When  I  hear  of  theassendilinii'  of  n  I.e^is- 
lature  in  one  of  these  AW-stern  States,  it  reminds  me  of  a  (  ly 
of  fire  in  a  pojndons  city.  Xo  one  knows  when  he  is  sale  ; 
no  man  can  tell  where  tin*  ruin  will  end."  Ibtwevei'.  as  the 
etfect  of  the  statute  mi<:'lit  be  in  my  favor.  I  could  not  cmn 
plain  of  it,  and  a  little  relh'ction  convinced  me  that  it  ••  iii!,t 
Jiave  been  enacted  in  the  interest  of  justice. 

I'lM'haps  the  most  im))ortatit  chane-es  which  have  takm 
])lace  since  my  tinu'.  I)y  direct  lenislation.  are  in  tlie  hiw  of 
evidence.  I)urin<^all  the  time  when  I  \va<  coniiertcd  with 
the  administration  of  the  law.  it  v.asassumed  that  no  one 
who  had  a  direct  pecuinary  interest  in  the  event  of  m  trial 
could  tell  the  truth  when  under  oath;  hence  it  was  a  sti- 
tled  )'ul(*  that  no  one  who  ha<l  the  sliiihest  pecuniary  inici- 
est  in  the  re^.ult  of  a  trial  could  lie  a  witness,  and  foi' tin' 
reason  that  it  was  assumcil  that  ^ui  li  interest  would  indue  > 
him 'to  testifv  falsely.     \o  position  in  lift',  no  estabi   .lic(| 


*    i     I 


w 
m 


;  1 


ii 


ft  }\ 


EAULY  BENXII  AND  BAR  OF  ILLINOIS. 


cliiirjR'ter  for  rfctitiidc,  no  coiifidcnco  which  all  ii'.cnilx^rs 
of  tho  c'onununitv  ini<;ht  have  in  the  U|)ri^htii('ss  of  any 
man — earned  hy  loji<;'  years  of  integrity  and  prohity — conld 
relieve  him  from  th(>i  snsj>ieion  ^\hi(•h  the  law  arbitrarily 
stami)e(l  upon  him,  while  no  one  dreamed  that  this  le<^al 
sns[)ic'ion  of  uni'eliahility  east  the  remotest  reflection  njjon 
his  inte<^rity.  We  sim))ly  found  the  law  to  be  so.  and  that 
it  had  been  so,  time  out  of  mind,  and  no  thought  of  the  in- 
justice of  such  a  r\\\o  ever  dawiuMl  upon  us;  no  lawyer  evei- 
thouuht  of  (luestioning-  its  |)ropriety,  or  even  sui^gesletl 
a  doubt  that  it  was  not  the  safest  way  for  the  ascei'tain- 
ment  of  truth.  >.'o  judoo  evei'  thou<;ht  of  intimatin<i',  in  an 
opinion,  that  Ji  I'ei^ret  was  felt  that  the  sourcc^s  of  liuht 
which  mi<i;ht  develop  the  most  imptti'tant  facts  had  been 
thus  shut  out,  and  that  court  or  jury  had  been  left  in  dai'k- 
ness  where  it  was  evident  that  the  bi'i;j;htest  li<i'ht  might 
have  been  thi'own  upon  an  iinpoi'tant  transactioji,  fi'<»m 
sources  of  which  the  most  ske})tical  could  cnt(,'rtain  no 
moral  doubt. 

This  serves  to  show  what  curious  beings  we  are.  and  how 
firndy  we  ai'e  wedded  to  old  customs  and  old  modes  of 
thought.  We  are  inclined  to  look  upon  the  ways  of  our 
ancestors  as  sacred,  and  therefore  as  just.  Tlie  statute  al- 
lowing ])arties  in  interest  to  testify  in  courts  of  justice 
caused  a  radical  change  in  the  administration  of  the  law, 
and  while  it  undoubtedly  opened  a  wi<le  d(M»r  to  the  'lid.uce- 
ment  to  perjury,  it  as  cleai'ly  afforded  a  new  means  fcr  tii" 
ascertainment  of  truth.  It  was  a  revolution,  in  fact,  and 
when  once  started  it  swe]tt  over  this  and  other  couniries 
with  astonishing  velocity.  Kngland,  whence  we  derive 
most  of  the  ])rinc'ples  which  have  gov.'i'ued  us  in  the  ad- 
niinistrati<m  of  justice,  and  whose  conservutism  has  i)rom])ted 
her  to  mov«^  slowly  and  cautiously  in  the  adoption  of  re- 
forms, cordially  embi'aced  this  i-eform  with  a  general  appro- 
bation of  the  courts  and  of  the  legid  profession;  and  the 
gcMitlemen  of  this  association  can  tell  lietterthan  I  can  what 
Jias  been  its  tfect  upon  the  udministraiion  of  justice,  though 


JUDGE  CATON-S  ADDRESS. 


T  am  told  tliat  it  liiis  mot  witli  j^^cncral  ai)itr<>l)ation ;  but  ! 
pi'csmiu'  that  the  (,'liaii^<»  was  more  conlially  acccptiMl  l)\ 
tlic  3'oun<^('r  humhIxm-s  of  tlie  l):ii'  and  of  tlit!  courts  than  1)\ 
the  old(?r  ones,  into  whoso  vorv  Immii^-  tho  old  system  had 
struck  sodooj)  a  root  by  long  practice  and  accustomed  mode 
of  thinking. 

The  chaiif^'o  madc^  in  the  criminal  law  which  allowed  a 
prisoner  to  testify  in  his  own  Ixdudf  upon  his  trial,  1  think, 
from  what  I  heai'd  alxuit  the  tinu'  the  change  was  made, 
did  not  meet  with  (piito  so  ready  an  acceptance*.  I  heard  it 
charactei'i/ed  as  a  legislative  device  to  promote  tho  ci'inu'  of 
]>erjury  by  oirering  a  reward,  often  of  inestimalde  value,  lor 
the  commission  of  that  ci'ime.  Th(>ro  may  he,  and  pi-oh- 
abiy  is,  some  truth  in  this  criticism.  The  inducenuMit  for  a. 
guilty  man  to  testify  in  such  a  way  as  to  shield  him  from 
the  punishment  to  bo  inllictcd  for  a  crinu;  committed,  is 
undoubtedly  vei'v  groat,  and  that  ])r(>;nium  is  no  doubt  very 
often  offered  to  those  on  who.ii^  conscienci's  tlu?  obligations 
of  an  oath  wouUl  press  very  lightly.  True,  courts  and 
juries  might  not  fe(d  themselves  obliged  to  give  the  same 
crochMico  to  the  testimony  of  a  prisoner  in  his  ov.-n  behalf. 
as  they  would  to  that  of  an  indilferent  person,  but  that 
could  not  remove  the  temptation  to  perjury  or  the  danger 
from  it.  Again,  it  presents  a  dangin'  which  must  ever 
menace  him  wiio  has  soms;  conscienco  left,  and  so,  we  m;iv 
presume,  is  not  a  hardened  criminal,  and  who  refuses  to  go 
upon  tho  stand  and  commit  perjury  in  oi'dor  to  escape 
punishment  I'or  crime.  Although  courts  ;iMd  counsel  are 
loi'biddon  to  urge  this  fact  in  ord;'r  to  create  a  in'oiudice 
against  the  prosum|)tion  of  innocence,  it  would  take  some- 
thing stronger  than  tho  mandate  of  a  statute  to  ])revent  a 
jury  from  noticing  it  and  thinking  about  it.  and  in  fact. 
from  being  intiuenced  by  it.  In  that  way,  it  does  undoubt- 
edly have  a  prejudicial  influence  upon  the  cases  of  the  least 
hardened  crmiinals. 

The  ])assage  of  our  statute  which  opened  the  doors  of  the 
learned  professions  and  other  occu[iations  to  fcnudes,  was 


'j:;i 


EARLY  BKNCII  AND  BAR  OF  ILLINOIS. 


I 


il 


t  :• 


m 


jiuotlior  rliiiim'c  from  tlio  old  modes  of  tliou^lit  and  i»ro('r«'d- 
iii;;' ill  our  |)rol'('ssioii.  Of  the  tlioiisiiiids  of  ii|>|ilic'iitions, 
diii'iii*;  my  time,  of  cimdidatcs  for  jidmission  to  the  l)ar,  not 
one  was  a  fomalc.  \Vliil«>  wn  liad  no  statut«^  cxjjrcssly  for- 
liiddin^^  this,  it  was  so  ^ciKM'ally  ac'c«»i)t(>d  as  the  law  that 
woiiii'ii  wcni  i?i('li;^il)lo  tothi'  profession,  that  no  ono  seems 
to  have  thon<^ht  of  makini;'  sueh  an  ajiplieation,  no  matt<'r 
liow  (Mninent  may  have  i»een  her  le<>al  (jualilications.  l>ut 
let  not  the  present  •••<Miei'ation  boast  that  it  was  the  lirst  to 
disiMtver  hei'  litness  oi'  ea|)al»dities  to  study  or  comprehend 
those  print  iples  which  would  (inalify  her  for  |>rofessional 
life.  That  was  known  and  rocoonize*!  and  acted  ui)on  long" 
aires  ag'o. 

The  ancients  were  not  destitute  of  distin^juishod  women 
in  the  medical  profession.  Ai^'iiodice,  an  Athenian  maid«Mi, 
assumed  the  "^arb  of  a  inantoenahle  her  tostudy  medicine, 
in  which  profession  slu^  became  famous.  ,\shei"  popularity 
aiul  her  practice  gre;'*ly  increase*!,  the  male  physicians 
were  filled  with  envy,  and  acc'i.„'d  Ium'  of  coi')Mi|)tion  before 
the  tribunal,  to  whom  sIm^  confessed  hei'  sex:  when  a  law 
Avas  immediately  uuide  allowinu^  all  f)'eei»oi'n  wonu'ii  to 
study  midwifei'v,  to  which  branch  of  the  practic<>  she  was 
most  <l(n()te<l.     She  was  born  r)(»(;  years  !>.  C. 

llortense.  not  a  Koman  matron  but  a  youn<^'  lady  of  the 
lioman  Kmpii'e.  was  the  most  leiirned  lawyer  of  her  tinu'. 
when  t1i<' science  of  the  law  absorbed  th(>  tiiouf»hts  and  studies 
of  the  most  leai'ued  and  talented  of  that  or,.jit  people.  At 
tluMi^i'  of  twenty-one  years,  she  had  ali'<>ady  acquired  such 
fame  that  sh(>  was  ])laced  at  the  lu^ad  of  the  most  distin- 
iiuislied  of  the  Roman  law  schools,  and  it  was  sai<l  of  her 
that  hei"  beautv  was  so  <>-reat  that  the  beholder  who  o-azed 
upon  hercouM  think  of  n'>thin«i'  else,  until  she  opened  her 
mouth  to  sp(>ak.  when  the  chai'm  of  her  elocpienco  dis])elle(l 
all  other  thouj^hts,  and  luM'lx^auty  was  foriiotten  amid  the 
fascinating  inlluences  of  her  address  ami  the  irresistible 
force  of  her  reasoning. 

iSho  was  the   dauuhter   of  Quiutus  Ilortensius,  a   great 


■  ■  '"A  I 


JLLMiK  CATONS  ADDHHSS. 


oi'iitor  and  liiwvcr.  Slio  was  born  ciiility  fivo  yoars  P..  ('. 
Tho  s|M'L'cli  whic'li  she  made  in  (It'lciisc  of  tlic  I. -loo  Uonian 
matrons  au^iinst  a  special  tax.  proixtscd  hy  the  Ti-iiinix  irs, 
lius  ('(tnu'down  to  ns  in  the  lan;;iia„.'  ii.  wliicli  it  was  nitcred. 
an<l  well  sustains  licr  r('|tntation  as  an  orator;  and  slic  snc- 
ci'cdcd  so  well  that  l.oouol'  licr  clients  were  exi'ni|>te<l  from 
the  tax. 

These  must  serve  as  oxanijiles  ^'f  women  who  acipiired 
nreat  distinction, and  displayed  <>i'e;it  ability  in  jtrofessional 
life  amon^'  the  ancients. 

While  there  have  been  nniny  female  soverei<:ns  in  the  past 
who  have  illustrated  their  capacity  to  study  and  understan<l 
tho  sciences  of  statesmanship  and  of  jurisprudence,  public 
sentiment,  bej^^otten  of  prejudice  ami  e«;otisin.  has  j)ractically 
closed  a<»'ainst  women  the  do()rs  which  h>ad  to  what  ai-e 
.•alle<l  the  learned  ))r(»fessi«)ns.  until  within  the  last  few  years, 
while  their  ^'reat  abilities  in  the  conduct  of  aifaii's  in  which 
thev  were  permitted  to  en^^'a^jre  has  been  a  tluMisaiwl  times 
illustrated  by  the  m<»st  |)ronounced  success.  When  our  own 
I.e.n'islature  passed  a  law  authori/in;-'  women  to  eti^au'e  in 
the  ditl'eren'-  occupaticms  on  the  sann^  plane  of  ri^^iit  with 
men,  many  of  the  oUl  school  of  thou;.i'hl  anticii»ated  that  its 
eilects  miji'lit  be  calamitous.  For  myself,  i  did  not  partici- 
pate in  this  apprehension.  No  doubt,  early  memories  and 
associations  may  have  had  tlieir  inlluence  upon  me  in  this 
nuitter.  1  was  born  and  brouiiht  up  in  tho  Society  of 
Friends,  a  reliuions  donondnation  in  which  the  endowments 
and  qualifications  of  women  were  always  distinctly  reco^' 
ni/.ed.  They  not  only  took  i)art  in  the  busi-iess  nieetini>s  of 
the  society,  but  tluMr  ri<>'ht  to  pi-each  in  the  reliii-ious  meet- 
iii«>-s  was  recoo-ni/ed  e(inaliv  with  that  of  men;  and  in  my 
bovliood.  when  I  was  so  situated  that  I  could  attend  those 
relio-iou.-; meetings.  I  heard  sermons  preached  by  women,  and 
prayers  made  by  them,  which  made  as  lastin,i,mn  impression 
upon  my  yonno;  inind  as  did  ever  those  of  men.  The  ne;it, 
]>lain  dress  of  such  a  speaker,  Ir"  sweet,  beninn  conntenan<,'e. 
her  charming  y:entleness  of  manners,  hersoft  and  winning  pei- 


I 


t!-i 


^ 


2;;o 


EAUFA'  [iKX(  H  AND  lUIl  OF  ILLINOIS. 


suasions.  \v»>r(»  calculiitrd  to  win  the  heart  of  the  licaj'tM'  w  Iicn 
tlii>ilis('oiii'S(>  of  a  man  wotiM  have  soiimlcd  liarsli  ami  almost 
rcpnisivt'.  It  secnuMi  to  me  that  sin*  knew  iM-ttcr  how  to 
touch  tlioso  sti'in;;;s  which  vihratc  from  heart  to  heart,  aixl 
especially  those  which  I'eached  tiown  4h'e|>int<»  the  youthful 
soul,  than  did  the  <ithei'  sex;  and  this  loviiii.''  .ind  heninii 
influence  was  understood,  appreciate*!  and  ntili/ed  l»y  that 
4lenon)ination  of  Christians;  and  I  have  no  doiiht  that  a 
memory  of  this  ha<l  much  to  <lo  with  shapin;^  not  o:ily  my 
feelin<^s  hut  my  judj^ment  on  the  suhject. 

I  presume  numerically  the  medical  profession  has  been 
autrment<'tl  much  more  hy  lady  practitioners  tlinu  has  the 
h'iial  ])rofession,  and  this  may  result  fr<»m  some  jieculiar 
endowments  which  they  possc'ss  for  tin'  former.  Their 
sympathetic  nature,  thi'ir  natural  •rt'ntli'iii'ss.  tlieii-  (|niclv" 
]>erceptions,  come  to  the  aid  of  their  jud<rmi'nt  and  their 
1  ea I'll in<;,  and  seem  to  endow  them  «'s|>ecially  for  the  prac- 
tice of  the  healin^j,-  art;  while  the  practice  of  the  law  seems 
to  ])artake  more  of  the  hi'lliifen'nt  character,  and  s(»  may  Im^ 
thought  to  ret|nire  a  sterner  nature  and  «lisp<tsition.  This, 
I  say,  may  he  one  leason  why  fewer  ladies  devote  them- 
selves to  th(^  le;^al  than  to  the  medical  profession.  Why  sc) 
few  devote  tiiemsclves  to  the  cure  of  sends,  I  will  not 
attemj)t  tosay;  hut  I  may  assert,  without  fear  of  contradic- 
tion, that  alar;;e  proportion  of  those  who  have  joined  the  cler- 
ical profej;sion  have  met  with  inarke«l  success.  IJut  it  is  not 
in  pi'ofessional  lif(^  alone  that  women  have  al»undantly  vin- 
dicated tluMi'  riii'ht  t<)  th(»  hi<;hest  respect  and  consideration. 
The  utility  of  tluMr  (Mforts  in  the  moral  w<»rld  stands  forth 
so  consjticuonslv  as  to  chalienLT!*  the  admiration  ol"  mankind, 
and  I  may  he  ])ermitte(l  to  point  with  pride  to  tlieii'  W(»rk 
and  recognition  in  the  Columhian  E.xjiosition.  inc<»nnection 
with  which  their  labors  and  their  intluenee  are  felt  in  all 
civilized  countries. 

(icntlemen,  I  sj)eak  to  you  as  from  a  fonnor  generation. 
W«'  wore  onco  young,  vigorous  and  anilntious.  We  sought 
to  lill  the  places  to  which  fortune  had  assigned  ' 


accor( 


JUIKJE  lATON'S  AUUUlvSS. 


Ii:i7 


injj  to  the  lu'st  of  our  Jil)ilit_v.  so  that  tlic  world  iiii;;iit  lie 
the  hi'llrr  for  our  prcsciu'c.  We  ii|ii>i'('ciat<'(l  that  we  \v»'i'i' 
mu'UiIm'is  of  a  hi^ih  au<l  an  hoiM»rahh'  profession,  with 
;-iM'r;'sp:i!i  lin^:  I'iSp  (;nihlliti;>;.  Ilistoi'v  shows  th:it  law- 
vors  arc  inori'  frcipi.'iitly  caUcd  upon  l>_v  their  feHowinen 
than  nii'uih.'rs  of  any  other  pi-ofession  oi*  callinii'  t(»  tako 
l>art  in  th  •  coiKluct  of  pnl)li('  alfairs;  and  l»y  this  is  tlie 
ni;'asur»' of  their  I'esponsihility  llxed.  So  it  has  i>een  in  the 
past,  so  is  it  now,  and  so  will  it  he  in  the  future.  Whatever 
flippant  expressions  may  he  heard  from  the  iuiiorant,  the 
prejudic'd  or  tlu^  envious,  to  the  (•(tutraiT.  tiiis  fact  atVords 
us  the  comfortim;'  as.;ui'auci>  tliat  the  integrity,  the  alulity 
and  the  leai'uin^'  of  the  profession  are  fidly  a|)|ire('iated 
and  valued  hy  the  eomnuinity  at  lar<^'e  all  over  the  eoiintry; 
and  this  of  it ;, 'If  should  act  a-;  an  inspiration  to  every  mem- 
herofthc  profession  to  sti'ivewith  his  utmost  cuer^.'V  to 
maintain  tiiat  liiuh  standard  of  morality  and  integrity 
which  has  secured  the  conlldenco  of  our  fellow-men,  and 
enabled  us  to  till  (»ut  the  measui'c  of  usefulness  which  our 
])hieo  in  society  has  rendered  posshle.  Should  the  time 
evei-  come  when  the  profession  of  the  law  shall  lie  dra<i;:t(I 
down  l»y  its  votaries  from  tho  positicm  of  a  nol)|e  and  an 
hon«tral)le  professi(m  t(i  that  of  a  venal  trade,  then  the  name 
of  lawyei'  will  heconio  a  title  of  reproach  instead  of  an 
honoralile  appellation. 

r.ut  few  are  now  left  who  commenced  the  struuule  of  pr<»- 
fessional  life  with  me,  animated  hy  hop)'  and  and>ition. 
inspired  l»y  indomitaiile  will  and  a  fixed  purp(»se  to  siuceed. 
I  have  seen  them  di'op  out  one  hy  one  as  we  ti-aveled  the 
I'oad  of  life,  side  by  side,  till  now  but  isolated  instances  aic 
left  of  those  who  can  tell  from  memoiw  the  incidents  of  the 
<listant  past;  but  they  have  left  dotted  alon^'  that  Avay 
beacons  of  brilliant  li<j;lit,  which  havo  serv<'d  t(t  «:uide  their 
successors,  and  will  serve  to  ^'uide  those  who  shall  still  come. 
later,  to  the  jjoal  of  honorable  distinction  and  t)f  usefulness. 
It  is  one  of  the ha])i)iestho])es  that  I  can  now  entertain  that 
honesty  and  honor,  usefulness  und  learning  will  he  upheld  in 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


I^|2j8    |2^ 

II        £  Itf   12.0 


_Scifflices 
Corporation 


23  WIST  MAIN  STRHT 

WnSTIR,N.Y.  145M 

(716)  t72-4S03 


^ 

^f^ 


^ 


238 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


the  future  as  in  the  past,  and  that  the  name  of  our  profession 
may  continue  to  be  the  synonym  of  all  that  is  noble,  useful 
and  enero-etic.  The  comforting  Jiope  of  the  past  must  rest 
in  the  future.  So  can  the  young-er  men  who  are  just  coming 
upon  the  stage  of  life  most  honor  those  who  have  gone  be- 
lore  them. 


1 1 


REMINISCENCES  OF  THE  CHICAGO  BAR. 


ADDKESS    DELIVERED    BEEOUE    THE    CHICAGO    BAR    ASSOCIATION 
FEBRUARY    11,  l55*J3,    BY    JOHN    DEAN    CATON. 

Mr.  Pt'cs'ulent  and   Gentlemen  of  the   Bar  Association  of 
Chicaffo: 

I  am  happy  to  accept  your  kind  invitation  to  moot  you 
here  at  this  time,  and  to  say  a  few  words  about  the  eai-liest 
liistory  of  our  ])rofession  in  Chicago.  It  is  indeed  <>rateful 
to  find  myself  surrounded  by  a  ]e<;alatmos])heie.  in  tlie  pres- 
ence of  gentlemen  of  the  profession  which  I  hne  so  Avell, in 
a  city  which  now  stands  where  stood  a  little  handet  sixty 
years  ago,  and  -where  I  first  commenced  my  ])iofessional 
career,  and  where  it  was  my  fortune  to  commence  the  lirst 
action  ever  brought  in  a  court  of  record  in  Cook  county. 
I  think  I  may  be  pardoned  for  feeling  a  certain  measure  of 
]H'ide  in  having  had  my  name  thus  associated  with  the  lirst 
judicial  records  of  this  county.  There  was  no  city  here 
then,  nor  even  a  village  corj)oration;  for  it  was  six  weeks 
after  my  arrival  before  150  male  inhabitants  over  the  age 
of  twenty-one  years  could  be  mustered  in  the  ])lace— a 
statutory  condition  necessary  to  form  a  village  corjjoration. 
It  so  happened  that  I  was  appointed  the  first  coi'poration 
attorney,  which  was  the  first  office  I  ever  held  in  this  State. 
Although  the  emoluments  were  very  small,  I  well  remem- 
ber that  iliey  were  very  opi)ortune,  and  were  ])robab]y  as 
gratefully  received  as  have  been  those  of  any  legal  repre- 
sentative of  the  town  or  city  since. 

Although  as  early  as  1S30  the  statute  fixed  the  terms  of 
the  Circuit  Court  in  Cook  County  and  made  it  the  duty  of 


240 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


! 


','1: 


.Judgo  Yoiinf^,  of  the  Fifth  Circuit,  to  hold  the  court  hero, 
of  which  Col.  11.  J.  Ilaniilton  was  the  clerk,  yet  no  case  of 
a  civil  or  criminal  nature  had  arisen  to  be  placed  upon  his 
<1ocket  till  more  than  two  Aveeks  after  my  arrival,  and  the 
judge,  having  been  informed  by  the  clerk  of  this  fact,  had 
not  appeared  to  o])en  the  court. 

The  first  case  that  was  ever  entered  upon  the  docket  of 
the  Circuit  Court  of  this  count}"  was  a  criminal  case,  and 
the  first  fee  I  ever  received  was  for  ])rosecuting  a  thief  who 
liad  stolen  $30  of  Bellows  Falls  money  from  a  Mr.  Hatch, 
who  employed  me  to  prosecute  him  and  recover  the  money, 
which  I  did.  I  rec^eived  $10  for  this  service,  the  first  fee  I 
ever  received  in  this  State,  and  I  never  received  a  fee  with 
more  satisfaction,  for  it  just  paid  my  two  weeks  board  up 
to  that  time — to  liave  paid  which  would  have  exhausted 
my  funds.  Giles  Spring,  wiiose  arrival  had  preceded  mine 
by  a  few  days,  and  Colonel  Hamilton  defended  the  case 
before  the  magistrate,  and  then  it  was  that  both  Spring  and 
myself  liad  an  opportunity  of  being  heard  before  a  Chicago 
audience  (for  nearly  every  man  and  boy  in  town  were  pres- 
ent), and  we  both  made  our  speeches  as  much  to  the  people 
as  to  the  magistrate,  who  bound  the  prisoner  over  to  the 
grand  jury;  and  so  Colonel  Hamilton  had  the  pleasure  or 
the  pain  of  writing  down  his  client's  name,  the  first  upon 
his  docket,  and  tiling  his  recognizance. 

The  second  action  ujion  that  docket  was  an  attachment 
case,  which  was  commenced  by  me.  Of  course  I  was  very 
glad  to  get  it.  Spring  necessarily  was  employed  on  the 
other  side,  and  he  beat  me  on  the  trial  before  the  first  petit 
jury  impaneled  in  the  Circuit  Court  of  this  county  and  got 
a  good  fee,  for  those  times,  while  I  had  to  be  content  with  a 
$5  retainer. 

As  neither  Spring  nor  myself  received  our  licenses  to 
practice  in  this  State  till  October  following — when  I  went 
on  horseback  to  Greenville,  in  Bond  county,  to  obtain  them 
— we  signed  our  clients'  names  to  precipes,  pleadings  and  such 


ill 


JUrJGE  CATONS  ADDRESS. 


o 


2U 


other  papers  as  otherwise  we  would  iiave  si^-iicd  us  jittor- 

11».\VS. 

When  we  rememlH  r  that  in  tho  absence  of  ])anies  and 
siinihir  Jinancial  convulsions  the  amount  of  h'^.il  business  is 
a  safe  criterion  hy  which  to  <leterniine  the  amount  of  c.nn- 
mercial  transactions,  the  entire  absence  of  litigation  in  the 
higher  courts  would  indicate  that  little  commercial  business 
had  been  carried  on  here  up  to  the  time  of  which  I  speak, 
and  the  entire  absence  of  crime  which  had  to  be  dealt  with 
by  the  Circuit  Court   sj)oaks  well  for  the  ]);'aco  and    o-ood 
order  of  the   community.     In  truth,  nothing  had   occm-red 
which  could  not  be  dealt  with  by  justices  of  tin;  \n\wi\  and 
three  such  officers  represented  all  the  judicial  force  in  the 
])lace,   namely,   Isaac   Harmon,    liusseil   E.    Ileacock   and 
Archibald  Clybourne.     Only  one  of  them,   Harmon,  kept 
an  office,  and  he  did  nearly  all  the   busim>ss.     Mr.  Ileacock 
was  the  only  lawyer  of   the  thrive,  and  he  was  a  verv  "-ood 
lawyer  too;  but  in  the  absence  of  any  ]irofessional  business 
he  opened  a  carpenter  shop,  a  trade  which  he  learned  when 
young;  his  shop,  built  of  log,s,  was  situated  on  the  corner  of 
South  Water  and  State  streets,  and  it  was  fitmihim  I  procured 
the  warrant  for  the  arrest  of  the  criminal  already  spoken  of. 
The  cnminal  was  brought  in  just  at  dusk,  and"  the  justice 
took  his  seat  on  a  saw  horse  by  the  side  of  his  woi-k  bench, 
upon  which  he  ])laced  a  lighted  tallow  dij»,  held  in  position 
by  four  nails  driven  into  a  block  of  wood. 

This  particularity  can  only  be  justified  by  my  desire  to 
enal)le  you  to  understand  the  judicial  position  at  the  very 
commencement  of  its  history  in  this  city,  and  to  enable  you 
to  draw  a  contrast  l)etween  then  and  now.  At  that  time 
there  was  already  an  ap})reciable  amount  of  business  in  the 
Circuit  Court  of  La  Salle  county,  and  especially  in  Putnam 
county,  but  there  were  no  resident  lawyers  in  either,  and 
clients  depended  upon  the  circuit  riders  for  the  conduct  of 
their  cases. 

These  lawyers  were  a  class  who  traveled  the  circuii  ,vitli 
the  judge,  and  who  had  to  practice  law  on  the  win-,  as  it 
Hi 


TLVULY   BENX'H  AND  BAR  OF  ILLINOIS. 


I 


wore,  and  wlio  received  their  retainers  about  the  time  court 
opened  and  IVecjuently  liad  to  learn  tlieir  cases  as  the  trials 
progressed.  Their  experience  in  this  mode  of  practicing  hiw 
eiuibled  them  to  i\o  this  with  exti'aordinary  facility  and  suc- 
cess. As  a  general  rule  they  wei'e  well  g'l'ouiided  in  the 
fuu(Unnental  principles  of  the  law;  and  habit  liad  enabled 
themto  tiiink  (juickly  and  accurately  and  without  confusion 
when  required  to  pass  from  one  subject  of  thought  to  an- 
other. 

The  first  Circuit  Court  which  I  ever  attended  in  tliis  State 
Avas  in  October,  ISiilJ,  at  Pekin,  in  Tazewell  county,  where  I 
hrst  met  Judge  Lockwood,  who  held  the  court;  John  J.  liar- 
din,  State's  attorney;  Stephen  T.  Logan,  John  F.  Stuart  and 
Dan  Stone,  of  S])ring(ield,  who  were  the  first  circuit  riders 
I  ever  met.  I  next  attended  a  Circuit  Court  at  (4reenviile, 
in  Bond  county,  Avhicli  Avas  held  by  Judge  Smith  of  the 
Supreme  Court,  also  in  October,  18;>;>.  where  I  first  met 
Jesse  li.  Thomas,  who  was  St  te's  attorney  in  that  circuit. 
The  next  Circuit  Court  whicli  I  attended  was  tlie  first  ever 
held  in  Cook  county,  in  ]\[ay,  ISSl.  Judge  Young  held  the 
court.  Thomas  Ford,  of  Quincy,  was  State's  attorney.  The 
fore'gn  lawyers  in  attendance  were  William  L.  May,  of 
Si)ringfield;  Benjamin  Mills  and  James  M.  Strode,  of  Galena. 
1  do  not  remember  the  number  of  cases  on  the  docket 
at  that  term.  Spring  and  I  were  engaged  in  them  all, 
on  opposite  sides,  excepting  one  in  Avhich  Mr.  Ford  rep- 
resented the  United  States.  I  had  brought  a  writ  of  habeas 
corpus  directed  to  the  commander  of  the  fort  here  to  pro- 
cure the  discharge  of  a  soldier  who  had  been  enlisted  be- 
fore he  was  eighteen  years  old  without  the  consent  of  his 
father. 

The  State  courts  at  that  time  exercised  that  jurisdiction, 
even  where  the  Federal  courts  were  conveniently  near,  as  I 
showed  by  a  case  in  Johnson's  reports.  The  question  of 
jurisdiction  Avas  not  seriously  contested,  but  the  court  held 
that  the  otius  lay  njion  me  to  prove  that  the  father  had  not 
consented  to  the  enlistment,  and  because  I  did  not  succeed 


Jb'IMrE  CATONS  ADDRESS. 


2\:\ 


in  (loino:  tliis,  eloarly,  tlio  soldier  was  roiiuimlod.  I  siipiM.sc 
tliat  no  State  court  at  tliis  time  would  entertain  jurisdiction 
in  such  a  case. 

Six  days  after  tlie  opening  of  the  Circnit  Conrt  here  the 

court  Avas  recjuired  to  be  opened  at  Ottawa,  in  La  SaUe  county. 

which  is  eiglity-four  miles  distant.     It  nMiuired  two  days* 

riding  on  horseback  to  reach  that  place,  and  as  half  a  day  of 

the  term  time  was  given  np  to  a  political  discussion  between 

Colonel  ^fay  and  Mr.  Mills,  rival  candidates  for  Congress, 

practically  but  three  days  were  allowed  to  dispatch  the  luisi- 

ness  in  court,  but  that  ])roved  to  be  amply  suilicient.     Ford, 

State's  attorney,  was  called  upon  l)y  the  judge  to  charge  the 

grand  jury.    This  gave  him  an  ojjportunity  to  be  first  heard 

in  Chicago,  where  he  had  never  been  before.     I  v.'ent  to 

Ottawa  with  the  judge  and  lawyers  who  had  come  here  with 

iiim  and  attended  that  court.     There  were  several  more  cases 

on  that  docket  than  had  been  on  this,  but  I  obtained  but 

little  business  there,  although  Iliad  been  there  twice  before, 

and  had  formed  a  good  many  acquaintances,  having  on  the 

l)revious  4th  of  March  attended,  as  a  delegate  from  Chicago, 

the  first  political  convention  ever  held  in  Illinois.     In  that 

convention  we  nominated  one  candidate  for  the  State  Senate 

and   one  for   rc^presentative   in   the  General  Assend)ly  to 

represent  .all  the  northern  part  of  the  State  as  far  south  as 

Peoria,  including  that  county.     I  did  not  anticipate  mncli 

pecuniary  result  from  my  attendance  upon  these  variijus 

courts  which  I  have  mentioned,  but  it  served  to  extend  mv 

acquaintance  and  especially  to  familiarize  myself  Avith  the 

]iractice  of  the  courts  in  this  State,  and  the  mode  of  doing 

l)usiness  here,  which  I  early  learned  was  widely  dilPeren't 

from  that  which  prevailed  in  New  York,  where  I  had 

studied  my  profession. 

The  day  after  my  fii-st  arrival  in  Chicago  I  called  at  Col- 
onel Hamilton's  office.  He  then  held  the  oilices  of  clerk 
of  the  Circuit  Court,  clerk  of  the  County  Commissioners' 
Court,  and  judge  of  the  Probate  Court.  He  received  me 
with  a  cordiality  and  welcome  which  were  one  of  his  dii- 


r'li: 


?'!; 


ki  J 


244 


EARLf  BENCH  AND  BAR  OF  ILLINOIS. 


tin«^uisliiiig  cluiractoristics  and  secured  for  him  tlio  warm 
friondsliipof  all  with  whom  he  came  in  contact.  He  invited 
me  to  come  to  his  oHlce  to  do  any  writing-  I  liad  occasion  to 
do  and  kindly  loaned  me  the  use  of  his  copy  of  the  statutes  of 
is,*};},  which  I  there  first  read,  and,  I  may  add,  carefully 
studied.  In  New  York  the  statute  ^ives  certain  fees  to  the 
successful  lawyer,  which  must  be  paid  him  by  the  unsuc- 
cessful l)arty,  because  it  is  deemed  but  just  that  he  who 
wrongfully  caused  litigation  should  ])ay  the  cost  Avhich  he 
has  compelled  by  his  wrongful  acts  of  omission  or  commis- 
sion, and  I  was  greatly  disa])pointed  to  find  that  the  fee  bill 
])rovided  no  compensation  to  be  paid  to  the  lawyer  of  the 
successful  party;  and  I  may  now  say  that  in  my  opinion  the 
rule  Avhich  compels  the  party  in  fault  to  ])ay  at  least  a  part 
of  the  ex})ense  which  he  com])els  the  party  who  has  suffered 
wrong  to  incur,  in  order  to  recover  his  rights,  is  but  just, 
and  consistent  with  sound  policy.  The  law  which  exempts 
a  man  from  paying  anything  which  he  has  compelled  the 
injured  party  to  incur,  encourages  litigation. 

This  is  not  tlie  only  law  which  seems  to  have  been  made 
in  the  interests  of  wrong-doers.  In  our  Criminal  Code  the 
State  has  placed  itself  to  a  great  disadvantage  in  the  prose- 
cution of  criminals,  by  giving  them  much  greatev  chances 
for  escape  than  the  State  has  for  conviction.  I  repeat  that 
many  of  our  laws  seem  to  be  made  for  the  benefit  of  delin- 
quents and  criminals.  Kotwithstanding  my  disappointment 
at  not  finding  in  the  fee  bill  an  allowance  for  the  successful 
lawyer,  I  finally  contented  m\'^self  with  the  reflection  that 
if  others  could  stand  it  I  could,  and  directed  my  studies  to 
the  rest  of  the  statute. 

I  may  mention  one  other  case  which  I  had  to  conduct  in 
1S33.  With  the  eastern  immigrants  had  come  a  number 
of  negroes,  perha])s  eight  or  ten.  Of  course,  coming  from 
the  free  States,  they  had  no  free  papers,  as  our  statute  re- 
quired, which  had  been  framed  upon  the  manifest  assump- 
tion that  all  negroes  were  born  slaves  and  that  such  must 
be  the  legal  presumption,  only  to  be  overcome  by  document 


JUDGE  CATONS  ADDRESS. 


2l.i 


he 


ary  evidence  shoAN  ino^  tlieir  ri<ilit  to  IVeedom.  Some  jmt- 
son  in  the  town,  ')ii(lly  troubled  witli  what  we  tiien  eallcd 
'' negTO])hobia  "  on  the  hrain,  swore  out  warrants  against 
every  negro  here  and  had  tliem  hronn-ht  Ix't'ore  S(juire  Har- 
mon to  compel  the  n  to  present  their  free  ]>aj)ei"s  or  be  soM 
as  the  statute  required,  and  tliey  em|)h)yed  me  to  (lefend 
them.  Fortunately,  the  county  commissioners  were  then 
in  session,  and  I  asked  the  court  to  hoUl  tlie  cases  open  till 
I  could  appear  before  that  body  and  prove  that  all  mv 
clients  were  born  free  and  obtain  free  [)apers  for  them.  Of 
course  I  could  show  lo  statut(^  authorizing  such  a  proceed- 
ing but  the  justice  very  willingly  granted  me  the  tini(>, 
when  I  marched  nu'  clients  over  to  Colonel  Ilamiltorrs 
office,  where  the  commissioners  were  in  session,  and  ma(h^ 
my  application  for  free  papers.  I  made  a  little  speech, 
showing  tnat  from  the  very  necessity  of  the  case  they  must 
have  jurisdiction  and  exercise  it  too,  to  prevent  a  monstrous 
wrong,  which  wouhl  be  a  disgrace  to  both  the  town  and  the 
State.  The  commissioners  allowed  me  to  produce  my  ])roof, 
which  was  abundant,  and  then  made  the  order  that  tlie 
clerk  should  issue  the  proper  ])apers  to  show  that  fact,  when 
immediately  Colonel  Hamilton  set  himself  to  work  and  got 
up  a  most  elaborate  document,  couched  in  the  most  formal 
terms,  sealed  with  the  seal  of  the  court  and  issued  one  to 
each  of  my  clients.  Armed  with  these  documents,  we  re- 
turned to  the  justice's  office,  wliereu])on  the  justice  decided 
that  those  were  good  enough  free  pa])ers  for  him,  and  im- 
mediately disch-arged  the  prisoners  and  taxed  the  cost  to 
the  prosecutor. 

Another  incident  that  happened  a  fcAV  years  later  mav  be 
worth  relating,  as  it  shows  a  great  change  in  the  position 
occupied  by  the  negro  in  Chicago.  At  that  time  a  very 
considerable  colony  of  colored  men  lived  here  and  amon<>- 
them  was  George  White.  He  had  a  very  loud  voice  and 
made  himself  town  crier.  He  was  both  smart  and  am- 
bitious. At  the  same  time  there  lived  in  the  gutters  of 
Chicago,  a  young  man  named  Harper.     He  Avas  a  man  of 


240 


EAULY  IJENCII  AND  BAU  OF  ILLINOIS. 


lilu'ral  oducation,  Imt  luul  siicciniilu'd  to  tlio  discnso  of 
(Irimkoniu'ss;  luul  oiilistod  as  a  common  soldier  intheanny, 
where  he  was  found  to  he  ahsolutely  incoi'rif^ihle,  had  hceii 
drummed  out  of  cami)  at  Green  l»ay,  whence  he  had  made 
his  way  to  Cliicago,  Avhei-e  he  contiiuied  liis  dissipation  and 
suhsisted  on  charity  and  l»y  doin<^  little  chores  ahout  the 
town.  Every'  )dy  felt  a  kindly  feeling'  toward  Harper,  for 
ho  was  learned,  witty  and  amiahh?,  hut  he  was  a  vaj^-rant  of 
the  most  pronounced  description,  an<l  some  one  caused  his 
arrest  as  a  va<j^rant.  He  was  convicted  and  condemned  to 
be  sohl  for  the  shortest  time  for  which  a  l»id  could  be  ob- 
tained at  public  auction.  George  AVhite  cried  the  sale 
throughout  the  town,  with  many  conunendations  of  the 
goods  to  bo  sold.  A  largo  concourse  gathered  at  the 
auction  block,  nearly  all  of  whom  had  a  kindly  feeling  for 
Harper,  who  had  got  sobered  up  while  in  confinement,  and 
we  all  appreciated  that  he  was  possessed  of  high  and  keen 
sensibilities  when  sober.  The  constable  offered  the  victim 
for  sale,  and  when  he  called  for  bids  George  White  bid 
twentv-five  cents  for  a  month's  service.  No  other  bid  l)ein<i' 
received  he  was  struck  off  to  the  negro,  who  walketl  nj) 
Avitli  a  satisfied  exjiression  of  countenance  to  take  posses- 
sion of  the  goods;  but  just  as  George  was  about  to  hiy  his 
hand  on  Harper  the  latter  made  a  bolt  to  the  ring  of 
spectators  which  surrounded  the  place,  when  an  opening 
was  immediately  made  in  it  through  which  he  ran,  when  it 
was  closed  up  before  George  could  pass  through  in  ])ursuit 
of  his  fleeing  chattel. 

Harper  took  refnge  araong  his  friends  who  concealed  him 
and  kept  him  in  hiding  for  a  week  or  two  while  the  pur- 
chaser was  vainly  seeking  him,  when  some  one  gave  him  the 
quarter  back,  for  which  he  disclaimed  ownership,  and  the 
vagrant  reapjiearetl  unreformed  and  pursued  his  old  course 
of  life.  The  disease  had  become  so  fastened  upon  him  that 
it  seemed  absolutely  uncontrollable.  He  actually  sold  his 
body  to  a  doctor  of  whom  he  w^as  begging  for  half  a  dollar, 
who,  with  the  hojie  of  disgusting  him,  offered  the  money 


iiii'l 


jud(;e  caton's  addiikss. 


for  liis  l)(»(ly  for  dissection,  who  assured  liiiii  tliat  if  lie  u'ave 
liiiii  the  money  lio  would  Iree/.e  to  death  before  niorniii.;-. 
Jlurpor  ca<,^erly  eml)r»(;ed  the  oiler,  actually  sii^iieil  the 
deed  for  his  body  after  death,  assurinfr  the  (hx'tor  that  ln^ 
expected  to  outlive  him.  After  a  number  of  years  lu^  finally 
disappeiired  from  Chici.^^o.  The  next  wo  hoard  of  him  in 
J'altimore,  whoro  with  six  other  reformed  drunkards  he 
formed  the  \Vashin;L!;'tonian  society  and  distin^ntishe<l  himself 
as  a  lecturer  on  te-mperanco,  the  fame  and  inlluence  of 
which  flftv  years  aii'o  si)read  throu<diout  the  United  Stat<'s. 
Tlirou*,^!  the  influence  of  that  society  many  druiikai-ds  were 
reformed  and  became  distinguished  lecturers  in  the  temper- 
ance cause. 

Edward  Casey  was  the  only  lawyer  that  I  distinctly  re- 
member who  joined  us  here  in  18;j;5,  but  Alexand<>r  N.  Ful- 
lerton  may  have  come  in  that  year.  In  l.s:'.4  our  bar  was 
augmented  by  the  arrival  of  a  very  consid(U'al)le  number, 
several  of  whom  became  distinguished,  but  it  is  beyond  mv 
present  purjiose  to  name  them  now.  For  a  score*  of  years 
thereafter  the  number  was  increased  only  by  immigrants, 
but  later  bv  native-born  Chicatroans.  How  manv,  vou 
know  better  than  I  do. 

Now  it  will  compare  favorably  ])oth  in  numbers  and  ability 
with  any  bar  in  the  republic,  and  as  I  trace  back  the  thread 
of  memory  to  the  very  beginning  I  may  feel  a  just  ])ride  in 
noting  its  advancement  from  that  time  to  this,  not  only  in 
learning  but  in  reputation.  If  I  contemplate  the  past  with 
great  satisfaction,  I  anticiyate  the  future  with  high  hopes. 
I  feel  that  I  may  appropi'iale  to  myself  some  portion  of  the 
credit  that  may  attach  to  the  bar  of  Chicago,  and  should 
feel  as  a  personal  reproacii  any  stigma  Avhich  may  ever  fall 
upon  it.  Ivomcmber,  gentlemen,  that  the  highest  integrity 
can  alone  maintain  tlut  iv,i»dtation  which  secures  to  the  bar 
the  public  confidenoo  which  has  selected  from  our  profes- 
sion so  large  a  proportion  of  the  public  men  who  have 
so  nobly  maintained  the  institutions  of  our  republican  gov- 
ernment.    So  long  as  we  shall  deserve  it,  from  our  ranks 


'2  is 


EAULY   BENCH  AND  BAK  OF  ILLINOIS. 


will  hn  scl(>c't(>(l  a  l;ir-*ro  proportion  of  thoso  who  shall  iniilvc 
and  those  wh(»  shall  administer  the  hiws  of  the  land;  and  I 
may  he  i)ennitt(!(l  now  to  wish  this  assoeijition  a  lon<^- and 
prosjterous  can'er,  and  its  individual  niemliers  long,  sne- 
cesslul  and  liapjn'  lives. 

The  a[»preeiiition  by  a  later  generation  of  a  soniowh.'it 
aetive  and  extendiMJ  professionsil  life  is  the  sweetest  consola- 
tion an  old  man  can  have.     Gentlemen,  1  thank  you. 


111?; 


■H 


m  ■ 


WHO  CfUIDED  THE  MOKMOXS  TO  SALT  LAKP;. 


A  f)ES»;Uli'TIOX   OF    TIIK   OHKAT   SALT     I.AKK    COir.NIKY    AM)     IldW 
IT    IIKCAMK    INlIAmTKI)    i;V    TIIK  MoiiMoN}*. 

In  tlio  latter  part  of  1S44  T  received  a  ropy  (jC  *•  Fiviii(.iif'>< 
P'ir.st  and  Second  Fvneditions  to  and  Uevoiid  the  K'ockv 
^loiintains,"  wliicli  I  i.ad  with  <ireat  interest.  In  his  sec- 
ond expedition  he  truw.  an  acc(Hint  of  tiie  (Jreat  Salt  Lake, 
now  called  Utid..  which  he  visited  on  his  way  west,  which 
was  the  tinst  authentic  account  ever  i)ul»lislicd  of  that  lake 
and  region,  and  on  his  return  he  disco'-ered  the  Utah  Lake. 
which  is  a  fresh  watei'  lake  lying  about  twenty  miles  south 
of  the  salt  lake  and  which  discharires  its  fresh  vater  into  the 
salt  lake,  of  which,  and  the  surrouii<lin<>'  country,  he  also  i^'a\-e 
an  account. 

He  i^ave  a  very  good  account  of  his  observations  made  in 
what  may  bo  called  the  Utali  Vallev,  which  su<'<'est(Ml  the 
great  possibilities  for  the  futui^e  of  a  civilized  settlenumt  in 
that  valley. 

That  was  the  first  session  of  the  Legislature  after  tht; 
murder  of  Joseph  Smith,  which  had  occurred  in  the  previous 
June.  When  the  JNformons  settled  in  Hancock  county;  they 
were  ])etted  and  caressed  by.  both  political  parties,  as  both 
wanted  to  secure  their  votes.  The  favors  thus  showered 
upon  them  undoubtedly  made  them  arrogant  and  miide  them 
magnify  their  importance  as  a  ])olitical  factor  in  tlu;  State, 
and  undoi-  this  influence  some  of  the  Mormons  couimitted 
acts  of  outrage  upon  the  Gentiles,  as  they  called  evinybody 
not  of  their  own  people.  A  portion  of  these  (nMitiles  w-ei-e 
friendly  to  them  and  defended   thera  thiotigh  thick  and 

(^49) 


250 


EARLY  BENCH  AND  BAR  OF  ILLINOIS. 


thin;  tlicsc  were  called  Jack-nionnons;  one  of  wliom,  nanu'd 
J.  13.  liackenstos,  they  had  elected  to  the  Lef^islature.  J I  is 
special  business  Avas  to  look  after  their  interests  in  that 
body,  and  in  the  performance  of  this  service  he  c(irtainly  had 
a  very  difficult  task  on  his  hands,  as  they  had  become  as 
••■enorally  odious  as  they  had  bi-en  [)oi)ular  before,  when 
both  political  parties  were  endeavoring- to  secure  tlunr  votes; 
and  now  they  vied  with  each  other  witii  ecpial  zeal  in  their 
endeavors  to  oppress  them.  A  number  of  the  1  cud inf^- Mor- 
mons, headed  by  Brigham  Youn«,^  were  at  the  Ciipitol  to 
assist  and  advise  with  Backenstos  in  his  endeavors,  more  to 
protect  them  against  hostile  legislation  than  to  obtain  any 
favorable  legislation,  whicii  was  manifestly  im])ossil)le. 

In  this  state  of  things  1  met  Backenstos  one  nu)rning  in 
the  rotunda  of  the  State  House,  when  on  my  way  to  the 
Supreme  Court  room,  and  asked  him  how  he  was  getting 
idong  in  his  efforts  for  his  IVIormon  constitutMits;  he  replied 
that  things  looked  very  bad;  that  everybotly  was  down  on 
tiiem;  that  both  political  parties  were  vieing  with  each  other 
in  their  efforts  too])press  them;  that  nobody  would  listen  to 
I'oason  or  justice  or  even  common  humanity,  and  that  they 
were  already  driven  to  extremities.  I  then  had  Fremont's 
report  under  my  arm.  It  then  first  occurred  to  me  that  the 
Salt  Lake  country,  in  the  midst  of  the  Rockv  mountains, 
would  atford  them  a  secluded  retreat  wiiere  they  could  run 
things  their  own  way  without  interference  from  the  outside 
Avorld  for  the  next  hundred  years,  and  at  his  re(piest  I  gave 
him  the  book  wlicn  I  had  turned  down  the  leaves  at  those 
places  Avhere  the  valley  of  the  Salt  Lake  is  described,  and 
he  took  it  to  his  constituents  with  my  suggestions  for  their 
examination  and  consideration. 

At  the  end  of  perhaps  two  weeks,  he  returned  me  the 
book  with  the  thanks  of  his  elders,  who,  he  said,  Avere  so 
favorably  struck  with  my  suggestion  that  they  had  already 
determined  to  send  an  exploring  party  to  the  valley  of  the 
Salt  Lake  the  next  spring,  who  would  give  it  a  thorough 
exploration,  and  if  they  should  make  a  favorable  report,  they 


AVIIO  (iUIDHl)  THE  MORMONS  TO  SALT  LAKK.         2.")l 


■would,  iis  soon  SIS  ])ossil)l(»,  remove  tlieir  people  to  and  tiil;e 
possession  of  that  eouiitiy, 

Tiiis  was  aeeoi-dinolv  done;  a  favorable  report  was  made 
1»y  the  exjdorin;,^  i)arty  and  the  removal  waseommeneed  and 
])rosecnted  as  rapidly  as  that  con  hi  he  etfeeted,  under  the 
leatiership  of  Brio-hjun  Youn<^''.  In  this  exodus  the  o-n-at 
l)ullcof  the  Monnons  joined,  thou<,di  some  <»f  them  who  did 
not  believe  in  the  ])olyoamy  doctrine  of  Hrioham  Voun<r 
r(}fused  to  g-o,  but  remained  in  the  east  and  formed  a  small 
community  by  themselves,  where  they  and  their  descendants 
still  remain  without  further  ])(>rse('Ution. 

About  twenty  yeai-s  later,  when  overhauling'-  a  bov  of 
books  for  which  I  could  not  find  room  on  the  shelves  of 
my  library,  I  came  across  this  same  copy  of  Fremont's 
report,  Avhich  called  to  my  mind  the  incident  above  related, 
and  it  occurred  to  me  that  here  was  an  incident  of  suHicir-nt 
historic  value  to  entitle  it  to  record  anion^'-  tin-  archives  of 
our  State;  so  I  wrot<^  it  out  on  the  fly-leaf  in  this  coj)v  of 
Fremont's  report  as  beino-  the  book  which  first  suiiiresti'd 
the  removal  of  the  Mormons  to  the  Salt  J.ake  Vallrv.  and 
])resented  it  to  the  ("hica;L;o  Historical  Society.  Every- 
body is  aware  that  the  Mormons  claimed  that  tlw'v  were 
first  led  to  that  retreat  by  a  divine  inspiration  or  intcrjiosi- 
tion,  the  truth  of  which  I  will  not  deny,  but  this  book  was 
the  instrument  selected  by  the  author  of  the  inspiration  to 
effectuate  his  puj-pose,  for  it  served  to  select  the  place  and 
to  point  out  the  road  to  it. 

I  should  have  inserted  these  facts,  although  notstrictlv 
connected  with  the  judicial  history  of  the  State,  at  an  earlier 
place  in  this  series,  had  I  not  known  that  Judfro  Mos<^s.  who 
was  the  librarian  in  charge  of  this  book,  was  prej)arinir  an 
elaborate  history  of  this  State,  and  assumed  that  he  wouhl 
deem  it  of  sufficient  importance  to  deserve  a  place  in  its 
history;  but  an  examination  of  that  work  since  its  publica- 
tion shows  that  it  is  not  there  mentioned.  A  note  just  re- 
ceived from  Judge  Moses  informs  me  that  he  recollects  a 
few  3'ears  ago  that  I  called  upon  him,  and  at  my  request  he 


EARLY  BKNCH   AND  BAR  OF  JLLIXOIS. 


i1  , 


])r«)cure(l  the  book  rofcrrod  to  and  road  the  note  on  the  i\y- 
h'af  to  nie;  tliat  he  intended  to  insert  it  in  his  chapter  on 
the  jMornions,  hut  that  it  was  accidentally  omitted;  and  that 
it  will  be  inserted  in  a  revised  edition  of  his  work.  He 
reofards  the  incident  of  historic  value  and  worth.y  of  especial 
mention. 

CiiioAoo,  April  19,  1S93. 


■  i 


|.H 


^ 


